Discrimination Law's Dirty Secret: The Equal Opportunity Sexual Harasser Loophole

Abstract

Title VII prohibits workplace harassment based on sex. An equal opportunity harasser, someone who sexually harasses men and women equally, falls outside the scope of Title VII’s sex discrimination provision. A true equal opportunity harasser fails to discriminate based on sex and does not trigger the statute. The troubling truth is that more harassment can yield less liability because Title VII is focused on sex-based discrimination and not broader workplace-harassment.

Commentators deny the equal opportunity harasser loophole exists, or declare it a dead or dying concept. Others claim it can be avoided by redefining well-established legal concepts. This is wishful thinking. Federal courts of appeals overwhelmingly accept and apply the equal opportunity harasser concept as a bar to liability. The relevant legal terms are too firmly established in Title VII jurisprudence to be redefined to eliminate the loophole.

While the circuit courts show differing levels of discomfort with the language and results of the equal opportunity harasser concept, only the Ninth Circuit denies its existence. This loophole is a fundamental problem with Title VII, and only statutory amendment or new legislation can remedy it.

Keywords: discrimination, Title VII, indiscriminate, harasser, harassment, sex, sexual, bisexual, equal opportunity, ENDA, employment, Holman, gender, 1964, Civil Rights Act