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St. Mary's Law Journal

Abstract

Women sexually harassed by male co-workers are protected by Title VII of the Civil Rights Act. Yet, men are not protected because the federal courts in the Fifth Circuit do not protect men who are sexually harassed by other men. Male victims of sexual harassment are protected if they live in another district which does offer Title VII protection to same-sex victims. But should geography dictate protection? The federal courts are currently split as to whether a claim of sexual harassment between members of the same gender is actionable under Title VII of the Civil Rights Act. In the absence of legislative guidance or direction by the United States Supreme Court, the federal district courts have struggled with the question of whether a claim is actionable when the parties to a sexual harassment lawsuit are of the same gender. Texas federal judges have explained that sexual harassment is discriminatory because it deprives the victim of the right to participate in the workplace on equal footing with others similarly situated. Regardless of whether the offending harasser is motivated by the sexual orientation of the victim, nonconformity to gender stereotypes, or to police gender in the workplace, the victim is placed on unequal footing. In sexual harassment situations, sexual conduct is just another way an employee exerts power over another employee. Such conduct is another way of discriminating against employees in a way which has nothing to do with job performance. Labeling discriminatory conduct as homosexual harassment, does not change the character of the prohibited conduct or its purpose. Such conduct should be no more tolerated by the law than other forms of discrimination because it perpetuates gender stereotypes. Courts should focus on the misconduct of the harasser instead of their genders, thus rendering the genders irrelevant.

Publisher

St. Mary's University School of Law

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