Labor and Employment Articles 

Seventh Circuit Rejects Argument that Being Perceived As Gay Amounts to Actionable Sexual Stereotyping

by Sandra Perry
The Seventh Circuit, which covers Indiana, recently staunchly rejected an employee’s argument that the harassment he allegedly suffered from male co-workers based on his perceived homosexuality constituted sexual stereotyping actionable under Title VII. See Hamm v. Weyauwega Milk Prods. Inc., No. 02-2529 (7th Cir. June 13, 2003). According to the employee in question, Mr. Hamm, his fellow workers harassed him because he did not conform to their view of what a man should be, and this “sexual stereotyping” amounted to unlawful discrimination because of his sex. Mr. Hamm’s claim was based on the rule articulated by the United States Supreme Court more than a decade ago in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989), barring discrimination on the basis of sex stereotypes.

To support his claim, Mr. Hamm provided evidence that, among other things, his co-workers called him a “girl scout” and a “faggot.” The Seventh Circuit Court of Appeals acknowledged that Mr. Hamm’s alleged harassment could have been connected to his co-workers’ belief that he was gay. However, after reviewing the facts of other cases in which employees had been harassed for not being appropriate feminine or masculine, the court concluded that Mr. Hamm’s “litany of complaints” related either to his coworkers’ “disapproval of his work performance or their perceptions of [his] sexual orientation,” not to any discrimination on the basis of his sex. Accordingly, the court held that the conduct Mr. Hamm complained of did not fall within a sexual stereotyping claim cognizable under Title VII.

This decision by the Seventh Circuit departs dramatically from the position taken by the Ninth Circuit. In Rene v. MGM Grand Hotel, 305 F.3d 1061, 1064 (9th Cir. 2002), the Ninth Circuit permitted a gay employee to proceed with his claim that the sexual harassment he suffered from his male co-workers was motivated by hostility based on his sexual orientation. In that case, male co-workers were alleged to have groped Mr. Rene, a gay male employee, and to have mocked him because he “walked like a woman.” Id. They also allegedly referred to him in female terms, such as “sweetheart” and “muneca,” which is Spanish for “doll.” Id. The rationale of five of the Ninth Circuit Court of Appeals judges in allowing Mr. Rene’s case to continue, was that male-on-male harassment of a sexual nature is actionable even when it is motivated by sexual orientation bias rather than because of sex. See id. at 1068. Three of the others judges on the ten judge panel agreed with the result, but on the different theory that Mr. Rene’s case was one of “actionable gender stereotyping harassment.” Id. at 1069.

It remains to be seen whether the United States Supreme Court will ultimately step in to resolve this conflict between circuits. But for now at least, the Seventh Circuit appears to be holding fast to principle that Title VII does not provide employees with protection against harassment motivated by sexual orientation.