with offensive sexual connotation" alone does not carry the day.
The Court was careful to emphasize the requirement that whether
the plaintiff is a male or female, the discrimination alleged
must be discrimination "based upon sex." Oncale, 118 S.Ct. at
1001-02. The "critical issue," according to the Court, is
"whether members of one sex are exposed to conditions of
employment to which members of the other sex are not exposed."
Oncale, 118 S.Ct. at 1002 (quoting Harris v. Forklift Systems,
Inc., 510 U.S. 17, 114 S.Ct. 367, 372, 126 L.Ed.2d 295 (1993)
(Ginsburg, J. concurring)). Offering examples of conduct that
might constitute same sex harassment, the Court described a
situation where a female plaintiff might show that a female
harasser revealed hostility to women in the workplace. In a
mixed-sex workplace, the Court noted that a plaintiff might offer
"direct comparative evidence" about how the harasser treated the
sexes differently in the workplace. Id. at 1002.
Notably, the Supreme Court never mentioned the issue of whether
same sex harassment encompassed harassment based, not upon the
plaintiff's sex, but upon his or her sexual orientation. The
failure to mention this issue leaves undisturbed the line of
cases holding that discrimination based upon a plaintiff's sexual
orientation or the existence of a sexual relationship is not
discrimination based upon sex and therefore does not state a
claim under Title VII. See, e.g., Dillon v. Frank,
952 F.2d 403, 1992 WL 5436 (6th Cir. Jan. 15, 1992) (Title VII does not
provide a remedy for hostile environment created by taunts aimed
at plaintiff's homosexuality); Williamson v. A.G. Edwards and
Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989), cert. denied,
493 U.S. 1089, 110 S.Ct. 1158, 107 L.Ed.2d 1061 (1990) (Title VII
does not prohibit discrimination based upon homosexuality);
DeCintio v. Westchester County Medical Center, 807 F.2d 304,
308 (2d Cir. 1986), cert. denied, 484 U.S. 825, 108 S.Ct. 89,
98 L.Ed.2d 50 (1987) (Title VII does not encompass disparate
treatment based upon preferential treatment afforded to
individual romantically involved with defendant-employer); Ulane
v. Eastern Airlines, Inc., 742 F.2d 1081, 1085-87 (7th Cir.
1984), cert. denied, 471 U.S. 1017, 105 S.Ct. 2023, 85 L.Ed.2d
304 (1985) (Title VII does not cover discrimination allegedly
based upon fact that plaintiff was a transsexual).
While the Second Circuit has not squarely decided the issue of
sexual orientation discrimination under Title VII either before
or after Oncale, that court has adhered to the requirement that
Title VII discrimination exists only where the claimed
discrimination can be said to have been suffered on account of
the plaintiff's sex, and not because of matters that might
involve a romantic relationship. In DeCintio v. Westchester
County Medical Center, 807 F.2d 304, 308 (2d Cir. 1986),
plaintiff, a male, claimed that he was the victim of sexual
discrimination when his employer gave preferential treatment to a
female with whom the employer was romantically involved. Holding
that any preferential treatment was based, not upon plaintiff's
sex, but upon the hired female's "sexual liaison" with her
employer, the Second Circuit held that plaintiff had no been
discriminated against because of his sex.
When rejecting the Title VII claim in DeCintio, the Second
Circuit cited with approval those cases refusing to extend Title
VII protection to claims of discrimination based upon sexual
orientation. See DeCintio, 807 F.2d at 307. Holding that the
plaintiff in DeCintio did not state a claim under Title VII,
the Second Circuit held that plaintiff was not prejudiced because
of his status as a male, (no similarly situated female would have
been hired for the position at issue), but because the employer
preferred his "paramour." Id. at 308. Such a set of
circumstances was not discrimination based upon sex and
therefore, did not state claim pursuant to Title VII.
In light of the clear requirement in Oncale that a Title VII
claim must allege
discrimination "based upon sex" and the Second Circuit's holding
in DeCintio, this court holds that plaintiff's hostile
environment claim, stemming from treatment he received because he
is a homosexual, does not state a claim for discrimination on the
basis of sex in violation of Title VII. Accord Klein v.
McGowan, 36 F. Supp.2d 885, 889-90 (D.Minn. 1999) (post-Oncale
hostile environment claim based upon plaintiff's perceived
homosexuality is not harassment based upon sex); Higgins v. New
Balance Athletic Shoe, Inc., 21 F. Supp.2d 66, 74-75 (D.Maine
1998) (post-Oncale decision dismissing hostile environment
Title VII claim alleging discrimination based upon plaintiff's
Like other courts that have faced similar issues, this court
makes clear that its holding is in no way meant to endorse the
type of behavior alleged to have been engaged in by plaintiff's
co-workers and supervisors. If true, such behavior should not be
tolerated in any workplace. See Dillon, 952 F.2d 403, 1992 WL
5436 at *7-8 (6th Cir. January 15, 1992) (actions aimed at
homosexual plaintiff depriving him of a proper work environment,
although cruel, are not made illegal by Title VII). The fact is,
however, that Title VII does not provide plaintiff a remedy.
Defendants' motion to dismiss plaintiff's complaint is granted.
The Clerk of the Court is directed to close this case.
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