Nine to Five

Connecticut fire chief Marquam Johnson may be the man academics like to hypothesize about, a true equal opportunity harasser who is alleged to have harassed both men and women in equally sexual, and equally offensive, ways.

According to complaints from a male deputy, Johnson grabs men by their testicles, gooses them, and puts his hands in their front pockets so he can simulate having anal sex with them. According to complaints from a female secretary, he whacks her on the buttocks and makes comments about the size of her breasts.

Both the male deputy and the female secretary have filed lawsuits against the Torrington, Connecticut, fire department, alleging that Johnson's conduct created a sexually hostile working environment in violation of Title VII, the federal antidiscrimination statute. Both contend, as they must to prevail, that they were harassed because of their sex.

But can it really be the case that both the man and the woman were harassed because of their sex, as Title VII requires? Might it be more accurate to say that if all the allegations against him are true, Johnson harasses regardless of sex, not because of it? Or, put another way, is Johnson's alleged harassment so indiscriminate that while it may constitute a tort, it does not constitute unlawful discrimination in violation of federal civil rights laws?

THE “BECAUSE OF SEX” REQUIREMENT

As discussed in Chapters 15 and 16, Title VII only prohibits harassment that occurs “because of sex” – it is that hook that distinguishes actionable discrimination from merely bad behavior. The long and hard-fought battle to bring same-sex harassment within the ambit of Title VII was what focused emphasis on the statutory requirement that harassment be “because of sex” in order for suit to be brought.

Title VII's “because of sex” requirement, however, has turned out to be more difficult to interpret than courts initially believed. For instance, the reasoning that says sexual harassment comes from opposite-sex desire, and is thus inherently “because of sex,” breaks down when the harassing supervisor is bisexual. If a bisexual supervisor gropes a female subordinate, he or she may well do the same thing to a male subordinate, thus undermining the female victim's claim that she was harassed because of her sex.