Hopkins v. Baltimore Gas & Electric Co.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE E. HOPKINS, JR.,
Plaintiff-Appellant,

v.

BALTIMORE GAS AND ELECTRIC
COMPANY,
Defendant-Appellee.

No. 95-1209
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION; AMERICAN CIVIL
LIBERTIES UNION OF MARYLAND, INC.;
WOMEN'S LEGAL DEFENSE FUND;
NATIONAL WOMEN'S LAW CENTER;
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Curiae.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey, II, Senior District Judge.
(CA-93-4167-H)

Argued: September 28, 1995

Decided: March 5, 1996

Before WILKINSON, Chief Judge, and NIEMEYER and
HAMILTON, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the opinion for
the court only in parts I, III, and IV and wrote separately in part II.
Chief Judge Wilkinson and Judge Hamilton join in parts I, III, and IV
of the opinion. Chief Judge Wilkinson wrote a concurring opinion in
which Judge Hamilton joins.

_________________________________________________________________

COUNSEL

ARGUED: Lee David Hoshall, Baltimore, Maryland, for Appellant.
Mary Lee Clark, Office of the General Counsel, EQUAL EMPLOY-
MENT OPPORTUNITY COMMISSION, Washington, D.C., for
Amicus Curiae EEOC. Sara Louise Mandelbaum, Women's Rights
Project, AMERICAN CIVIL LIBERTIES UNION FOUNDATION,
New York, New York, for Amici Curiae Women's Rights Project, et
al. Joseph Michael McGuire, SHAWE & ROSENTHAL, Baltimore,
Maryland, for Appellee. ON BRIEF: John P. Rowe, Acting General
Counsel, Gwendolyn Young Reams, Associate General Counsel, Car-
olyn L. Wheeler, Assistant General Counsel, Office of the General
Counsel, EQUAL EMPLOYMENT OPPORTUNITY COMMIS-
SION, Washington, D.C., for Amicus Curiae EEOC. Susan Goering,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF
MARYLAND, Baltimore, Maryland, for Amici Curiae Women's
Rights Project, et al. Robert H. Ingle, III, SHAWE & ROSENTHAL,
Baltimore, Maryland; L. Ellis Justis, Jr., BALTIMORE GAS &
ELECTRIC COMPANY, Baltimore, Maryland, for Appellee.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge, writing for the court only in parts I, III,
and IV:

George E. Hopkins, Jr., alleges in his complaint in this case that his
male supervisor's comments and actions created a sexually hostile
work environment in violation of Title VII of the Civil Rights Act of
1964. In granting the motion for summary judgment of Hopkins'
employer, the district court held that Title VII does not provide a
cause of action for an employee who has been subjected to sexual
harassment by a supervisor of the same gender. We affirm the district
court's judgment, but for the reason that Hopkins failed to make out
a prima facie case of a hostile work environment.

2
I

From 1985 until 1993, Hopkins worked in the Photographic Ser-
vices Unit of Baltimore Gas & Electric Company (BG&E) as a color
photographic technician. His immediate supervisor was Ira Swadow.
In October 1993, as part of a reduction in force and a company-wide
reorganization, BG&E eliminated the Photographic Services Unit and
its 13 positions, including those held by Hopkins and Swadow.

Hopkins contends that throughout his term of employment at
BG&E, Swadow subjected him to discriminatory sexual harassment,
creating a hostile work environment. Hopkins bases his claim on the
following incidents:

1. Swadow frequently entered the men's bathroom
when Hopkins was there alone. On one occasion in 1986,
while Hopkins was at the urinal, Swadow pretended to lock
the door and said, "Ah, alone at last." He walked towards
Hopkins, making Hopkins feel "very uncomfortable."

2. In 1987, Swadow wrote "S.W.A.K., kiss, kiss," and
drew small hearts on internal mail Hopkins received from
his fiancee, a BG&E employee. On another occasion,
Swadow added the word "Alternative" in front of the com-
pany name "Lifestyles" on a piece of mail addressed to Hop-
kins.

3. In February 1988, during a party given by Hopkins,
Swadow suggested to a BG&E employee that Hopkins and
his fiancee were getting married because she was pregnant.
Upon Hopkins' engagement, Swadow told him that he
would be "counting the months" to see when the baby
arrives. Before Hopkins' marriage, Swadow occasionally
asked him if he had gone on dates over the weekend and
whether he had sex with anyone. Swadow also mentioned
repeatedly that his children called him "Daddy," that it took
a special person to be called "Daddy," and that he was sure
Hopkins' son would never call Hopkins "Daddy."

3
4. At Hopkins' wedding on June 25, 1988, Swadow was
the only man who attempted to greet Hopkins in the receiv-
ing line by kissing him.

5. Sometime before 1990, while Hopkins was leaning
back on a table and speaking on the telephone, Swadow piv-
oted an illuminated magnifying lens over Hopkins' crotch,
looked through it while pushing the lens down, and asked
"Where is it?"

6. Sometime before 1990, Swadow asked Hopkins,"On
a scale of one to ten, how much do you like me?" Hopkins
felt that the question was inappropriate. He had previously
told Swadow that he objected to Swadow's "sexual over-
tones."

7. Sometime before 1990, Swadow bumped into Hop-
kins and said, "You only do that so you can touch me."

8. Sometime before 1990, during a conversation with
Hopkins and a vendor about a recent airplane crash,
Swadow looked at Hopkins and said that in order to survive
with burning fuel on the surface of the water, Swadow
would "find a dead man and cut off his penis and breathe
through that." Hopkins told Swadow that he was offended
by such a "sick" statement.

9. In 1989 or 1990, while Hopkins was showing the
color darkroom to a supervisor's female guest, Swadow
came in and asked "Are you decent?"

10. In 1991, while preparing to leave on a business trip
from Hopkins' home, Swadow found an unloaded gun in the
house and pointed it at Hopkins.

11. On August 1, 1991, Swadow squeezed into the one-
person revolving door to the darkroom with another
employee. Upon exiting the door, Swadow looked at Hop-
kins, who was in the darkroom, and asked, "Was it as good

4
 for you as it was for me?" The other employee looked very
uncomfortable. Later, Swadow attempted to force himself
into the same revolving door with Hopkins. He had made
physical contact with Hopkins' back before Hopkins pushed
Swadow away and told him that he "objected to it" and did
not want to be in the darkroom with him.

12. Throughout 1993, Swadow regularly commented on
Hopkins' appearance. For example, Swadow would say,
"You look nice today," "You have a really pretty shirt on,"
or "You look so distinguished." Once he turned over Hop-
kins' tie and examined it.

13. On July 2, 1993, while Swadow and Hopkins were
discussing a photographic negative, Swadow, with a"very
peculiar" look on his face, commented that "orientation is
subjective."

Late in 1989, Hopkins complained to his supervisors about Swad-
ow's sexual harassment, particularly his inappropriate sexual com-
ments and jokes. He identified the events described above in
paragraphs 5 and 7. In response, BG&E conducted an internal investi-
gation, which included interviews of Hopkins, Swadow, and nine
other employees in the Photographic Services Unit. A manager's
report concluded that "practically all of the Sections's employees
engage in joking and comments of one kind or another" but that such
comments were "not offensive" and were not"intended to be so." An
employee case analyst, who could not conclude that Swadow's behav-
ior was "sexually motivated," felt that Hopkins was trying to "hang"
Swadow.

The matter was then referred to higher management, which assured
Hopkins that Swadow was "under close scrutiny" and that "none of
this would happen in the future." At the time, Hopkins appeared satis-
fied with BG&E's response. Without ultimately taking a position on
whether Hopkins' charges were true, BG&E offered to interview him
for a transfer to two different positions in other departments. Hopkins
declined the offer out of a concern that his transfer would give his co-
workers the impression that he was the one at fault.

5
Over a year later, Hopkins filed a charge of sexual discrimination
with the Equal Employment Opportunity Commission (EEOC), and
the EEOC issued a right to sue letter in September 1993. Hopkins
filed this action in December 1993, alleging sexual harassment and
retaliation in violation of Title VII of the Civil Rights Act of 1964.

Following discovery, the district court granted BG&E's motion for
summary judgment on both of Hopkins' claims. Hopkins v. Baltimore
Gas & Elec. Co., 871 F. Supp. 822 (D. Md. 1994). The court con-
cluded that same-gender sexual harassment is not actionable under
Title VII and, alternatively, that the harassment of which Hopkins
complained did not occur "because of" Hopkins' gender. Id. at 834-
35. With respect to Hopkins' retaliation claim, the court concluded
that he had failed to show any "adverse employment action." Id. at
836-37. This appeal followed.

II

Hopkins first argues that the district court erred in holding that
same-gender sexual harassment is not actionable under Title VII. In
entering summary judgment for BG&E, the district court concluded
that Title VII does not provide a cause of action for an employee who
has been subjected to sexual harassment by a supervisor or co-worker
of the same gender. 871 F. Supp. at 834. The court's reasoning
focused on Congress' purpose in enacting Title VII and the statute's
language:

Title VII prohibits discriminatory conduct on the basis of
gender and "evinces a congressional intent `to strike at the
entire spectrum of disparate treatment of men and women.'"
Where, as here, the alleged harasser and the alleged victim
are both of the same gender, the language of the statute
would be strained beyond its manifest intent were the Court
to hold that under these facts there has been discrimination
"because of . . . sex".

Id. (alteration in original) (citations omitted).

In deciding the question of whether same-gender sexual harassment
is actionable under Title VII, we begin with the applicable statutory

6
language. Title VII prohibits "an employer" from "discriminating
against any individual with respect to his compensation, terms, condi-
tions, or privileges of employment, because of such individual's . . .
sex." 42 U.S.C. § 2000e-2(a)(1). Since Title VII's enactment, the
meaning of the term "sex" as used in the Act has become the subject
of judicial and academic debate. Viewed in the abstract, a prohibition
of discrimination based on "sex" is broad and perhaps even undefin-
able. Arguably, such a prohibition might be read to preclude discrimi-
nation based on human psychological and physiological
characteristics or on sexual orientation. It might also be read to pro-
hibit all workplace sexual behavior or words and deeds having sexual
content. Indeed, at oral argument, Hopkins' counsel argued that dirty
jokes or sexually-based profanity spoken by a male supervisor to
other male employees implicates the prohibitions of Title VII.

In the context of Title VII's legislative history, however, it is
apparent that Congress did not intend such sweeping regulation. The
suggestion that Title VII was intended to regulate everything sexual
in the workplace would undoubtedly have shocked every member of
the 88th Congress, even those most vigorously supporting passage of
the Act. Detached from their historical setting, the terms of Title VII's
prohibition of discrimination, "because of" an individual's "sex,"
stand only as "inert language, lifeless words," and, perhaps, even
"playthings with which to reconstruct the Act." Romero v. Interna-
tional Terminal Operating Co., 358 U.S. 354, 379 (1959) (Frank-
furter, J.). Accordingly, it becomes necessary to turn to Title VII's
legislative history.

Just two days before the House of Representatives passed Title VII,
it adopted an amendment adding "sex" as a prohibited basis for dis-
crimination. Congressman Smith proposed the amendment to "do
some good for the minority sex" by ensuring that women receive "as
high compensation for their work as do the majority sex." 110 Cong.
Rec. 2577 (1964). Congressman Celler opposed the amendment,
arguing that the bill was already "all-embracing," covering "every-
body in the United States" including "white men and white women
and all Americans." Id. at 2578. Congresswoman Griffiths, however,
responded that when a qualified white woman is denied a job because
she is a woman, she has no recourse without the amendment. Id. at
2579. To combat such discrimination, the House adopted Congress-

7
man Smith's amendment, adding "sex" as a prohibited basis for
discrimination.1

While Congress' particular focus in amending Title VII to prohibit
discrimination on the basis of "sex" was to ensure equal employment
rights for women, the Supreme Court has interpreted the Act's broad
language to protect both men and women. See, e.g., Newport News
Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669, 676 (1983)
(holding that insurance plan that provided less extensive pregnancy
benefits to married male employees than to married female employees
discriminated against males in violation of Title VII). Examining the
legislative history of the Pregnancy Discrimination Act, which
amended Title VII in 1978, the Court in Newport News reasoned that
even though "congressional discussion focused on the needs of female
members of the work force . . . [t]his does not create a `negative infer-
ence' limiting the scope of the Act to the specific problem that moti-
vated its enactment." Id. at 679; cf . McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 280 (1976) (holding that Title VII pro-
scribes racial discrimination against whites "upon the same standards"
as racial discrimination against nonwhites).
_________________________________________________________________
1 Because Congress intended that the term "sex" in Title VII mean sim-
ply "man" or "woman," there is no need to distinguish between the terms
"sex" and "gender" in Title VII cases. Consequently, courts, speaking in
the context of Title VII, have used the term "sex" and "gender" inter-
changeably to refer simply to the fact that an employee is male or female.
See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41 (1989)
(using "gender" and "sex" interchangeably). Indeed, the use of "sex" and
"gender" interchangeably may impose a useful limit on the term "sex,"
which otherwise might be interpreted to include sexual behavior. Some
academic writers, however, seek to maintain or to heighten a distinction
between the terms "sex" and "gender," asserting that "gender" connotes
cultural or attitudinal characteristics distinctive to the sexes, as opposed
to their physical characteristics. See, e.g., Mary Anne C. Case,
Disaggregating Gender From Sex and Sexual Orientation: The Effemi-
nate Man in the Law and Feminist Jurisprudence, 105 Yale L. J. 1
(1995) ("gender [is] to sex what masculine and feminine are to male and
female"). See also JEB v. Alabama, 114 S. Ct. 1419, 1436 n.1 (1994)
(Scalia, J., dissenting). While it may be useful to disaggregate the defini-
tion of "gender" from "sex" for some purposes, in this opinion we make
no such effort, using the terms interchangeably to refer to whether an
employee is a man or a woman.

8
In 1986, the Supreme Court expanded the scope of Title VII in yet
another direction by recognizing that the prohibition against "discrim-
ination" protects employees from "discriminatory sexual harassment."
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-66 (1986) (empha-
sis added). Noting that "the language of Title VII is not limited to
`economic' or `tangible' discrimination" but rather "evinces a con-
gressional intent `to strike at the entire spectrum of disparate treat-
ment of men and women' in employment," the Meritor Court
announced that "when a supervisor sexually harasses a subordinate
because of the subordinate's sex, that supervisor`discriminate[s]' on
the basis of sex." Id. at 64 (alteration in original) (citation omitted).
Thus, the Court established that a claim of "hostile environment" sex
discrimination is actionable under Title VII. Id. at 73.

While the Supreme Court has interpreted Title VII to protect both
men and women against workplace sexual harassment by the opposite
sex, it has not specifically addressed the question of whether the Act's
prohibitions apply when the harasser and the victim are the same sex.
The EEOC and several circuits, however, appear to agree that Title
VII may cover same-sex harassment.

The EEOC Compliance Manual states that the respective sexes of
the harasser and the victim are irrelevant in determining whether Title
VII has been violated:

The victim does not have to be of the opposite sex from the
harasser. Since sexual harassment is a form of sex discrimi-
nation, the crucial inquiry is whether the harasser treats a
member or members of one sex differently from members
of the other sex. The victim and the harasser may be of the
same sex where, for instance, the sexual harassment is based
on the victim's sex (not on the victim's sexual preference)
and the harasser does not treat the employees of the opposite
sex the same way.

EEOC Compliance Manual, § 615.2(b)(3). Although the courts are
not bound by the EEOC's interpretation of Title VII, it is nevertheless
appropriate to consider the EEOC's interpretation because of the
EEOC's charge to enforce the Act. See Meritor , 477 U.S. at 65.

9
The District of Columbia Circuit has acknowledged the possibility
of actionable sexual harassment under Title VII where "a subordinate
of either gender" is harassed "by a homosexual superior of the same
gender." Barnes v. Costle, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977).
That same court subsequently reiterated, "in each instance the ques-
tion is . . . would the complaining employee have suffered the harass-
ment had he or she been of a different gender?" Bundy v. Jackson,
641 F.2d 934, 942 n.7 (D.C. Cir. 1981). Similarly, in Baskerville v.
Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995), the Seventh Cir-
cuit commented that "[s]exual harassment of women by men is the
most common kind, but we do not mean to exclude the possibility that
sexual harassment of men by women, or men by other men, or women
by other women would not also be actionable in appropriate cases."
See also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th
Cir. 1994) (commenting that "we do not rule out the possibility that
both men and women . . . have viable claims against [a male supervi-
sor] for sexual harassment"), cert. denied , 115 S. Ct. 733 (1995);
Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir.
1993) (Van Graafeiland, J., concurring) (arguing that "harassment is
harassment regardless of whether it is caused by a member of the
same or opposite sex"), cert. denied, 114 S. Ct. 1189 (1994); cf.
Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192 (1st Cir.
1990) (holding that homosexual advances by male co-worker were
not sufficiently severe or pervasive to be actionable).

Thus far, only the Fifth Circuit has expressly refused to recognize
a cause of action for same-gender sexual harassment. See Garcia v.
Elf Atochem North America, 28 F.3d 446, 451-52 (5th Cir. 1994). In
Garcia, the court held, without any discussion, that "`[h]arassment by
a male supervisor against a male subordinate does not state a claim
under Title VII even though the harassment has sexual overtones'"
because "`Title VII addresses gender discrimination.'" Id. at 451-52
(quoting Giddens v. Shell Oil Co., No. 92-8533, slip op. at 1-2 (5th
Cir. Dec. 6, 1993) (reasoning that employee "did not allege how his
employer treated him differently because he was a male") (unpub-
lished), cert. denied, 115 S. Ct. 311 (1994)). Garcia also cited
Goluszek v. Smith, 697 F. Supp. 1452, 1453 (N.D. Ill. 1988), a case
in which an "unsophisticated" male mechanic, who had "little or no
sexual experience" and was "abnormally sensitive to comments per-
taining to sex," had been teased about women by co-workers using

10
crude language and nude photographs. In Goluszek , the district court
held that harassment by fellow male co-workers in a male-dominated
environment "was not the type of conduct Congress intended to sanc-
tion when it enacted Title VII." Id. at 1456.

District courts across the country are deeply divided on whether
Title VII applies to same-gender sexual harassment. 2 In the case
before us, the district court concluded that same-gender sexual harass-
ment is never actionable under Title VII. Hopkins, 871 F. Supp. at
834.

In addressing this issue, I do not find persuasive the reasoning of
the Fifth Circuit in Garcia and those district courts that have con-
cluded categorically that same-gender sexual harassment can never be
actionable under Title VII. In aligning myself with those courts that
have observed that same-gender sexual harassment may be actionable
under Title VII in appropriate circumstances, I conclude that such a
holding is required by the statutory language, understood in its histor-
ical context and as subsequently interpreted by the Supreme Court.
While it is apparent from the historical record that Congress, in pro-
hibiting sex discrimination, meant to prohibit discrimination only on
the basis of the employee's status as a man or a woman, it is also clear
from the statutory language itself that only the sex of the employee
is relevant in determining whether Title VII is implicated. Title VII
imposes no gender restriction for the person effecting the discrimina-
tion; it prohibits discriminatory conduct by an"employer," regardless
of the employer's gender or the gender of those whose conduct
imputes liability to the employer. Thus, the requisite causation of pro-
hibited conduct is defined only by the status of the employee as a man
or a woman.
_________________________________________________________________
2 Compare, e.g., Sardinia v. Dellwood Foods, Inc., 1995 WL 640502
(S.D.N.Y. 1995) (holding that same-sex sexual harassment claims are
actionable under Title VII) and Griffith v. Keystone Steel & Wire, 887
F. Supp. 1133 (C.D. Ill. 1995) (same) and Raney v. District of Columbia,
892 F. Supp. 283 (D.D.C. 1995) (same) with Ashworth v. Roundup Co.,
1995 WL 520699 (W.D. Wash. 1995) (holding that same-sex sexual
harassment claims are not actionable under Title VII) and Goluszek v.
Smith, 697 F. Supp. 1452 (N.D. Ill. 1988) (same) and Myers v. City of
El Paso, 874 F. Supp. 1546 (W.D. Tex. 1995) (same).

11
It follows that in prohibiting sex discrimination solely on the basis
of whether the employee is a man or a woman, Title VII does not
reach discrimination based on other reasons, such as the employee's
sexual behavior, prudery, or vulnerability. See McWilliams v. Fairfax
County Bd. of Supervisors, No. 94-1607, slip op. at 7 (4th Cir. Jan.
9, 1996) (explaining that "because of . . . sex" in Title VII does not
mean because of "the victim's known or believed prudery, or shyness,
or other form of vulnerability to sexually-focused speech or con-
duct"). Similarly, Title VII does not prohibit conduct based on the
employee's sexual orientation, whether homosexual, bisexual, or het-
erosexual. Such conduct is aimed at the employee's sexual orientation
and not at the fact that the employee is a man or a woman.3 Thus, as
the Supreme Court observed in Price Waterhouse v. Hopkins,
"[W]hile an employer may not take gender into account in making an
employment decision (except in those very narrow circumstances in
which gender is a [bona fide occupational qualification]), it is free to
decide against a woman for other reasons." 490 U.S. 228, 244 (1989)
(emphasis added).

Moreover, since the language of Title VII prohibits sex
discrimination based solely on the employee's gender without consid-
eration of the gender of the person effecting the discrimination,
because of the holding in Meritor the Act must be construed also to
prohibit sexual harassment against an employee because of that
employee's gender, regardless of the harasser's gender. As we noted
earlier, in Meritor the Supreme Court concluded that sexual harass-
ment, which is sufficiently severe and pervasive to alter the condi-
tions of employment, constitutes discrimination of the type prohibited
by Title VII. I therefore conclude that sexual harassment of a male
employee, whether by another male or by a female, may be actionable
under Title VII if the basis for the harassment is because the
employee is a man.
_________________________________________________________________

3 Recognizing that Title VII does not prohibit discrimination because
of sexual orientation, several local civil rights laws have added "sexual
orientation" as a proscribed basis of discrimination. See, e.g., Montgom-
ery County Code, § 27-19(a) (prohibiting discrimination because of an
individual's "race, color, religion, creed, ancestry, national origin, age,
sex, marital status, handicap or sexual orientation" (emphasis added)).

12
The more difficult question arises as to what proof is necessary to
demonstrate that harassment is because of the employee's gender and
not for some other reason, particularly when the harasser and the vic-
tim are the same gender.

When someone sexually harasses an individual of the opposite gen-
der, a presumption arises that the harassment is"because of" the vic-
tim's gender. This presumption is grounded on the reality that sexual
conduct directed by a man, for example, toward a woman is usually
undertaken because the target is female and the same conduct would
not have been directed toward another male. See , e.g., Barnes, 561
F.2d at 90 (plaintiff "became target of her superior's sexual desires
because she was a woman . . . . [N]o male employee was susceptible
to such an approach"). But when the harasser and the victim are the
same gender, the presumption is just the opposite because such sexu-
ally suggestive conduct is usually motivated by entirely different rea-
sons.

Thus, when a male employee seeks to prove that he has been sexu-
ally harassed by a person of the same sex, he carries the burden of
proving that the harassment was directed against him"because of" his
sex. The principal way in which this burden may be met is with proof
that the harasser acted out of sexual attraction to the employee. In
McWilliams, slip op. at 6-7 n.5, we noted that a male employee who
undertakes to prove sexual harassment directed at him by another
male may use evidence of the harasser's homosexuality to demon-
strate that the action was directed at him because he is a man. But we
cautioned that proof of such homosexuality must include more than
"merely suggestive" conduct. Id.

I recognize that conduct directed toward an employee of the same
gender as the harasser can have sexual content or innuendo and,
indeed, may be offensive. But unless such harassment is directed
toward an employee "because of" his or her status as a man or a
woman, it does not implicate Title VII. I reject the notion that when
a man, for example, uses sexually oriented gestures and language, or
engages in sexually perverse activity to harass another man, Title VII
automatically imposes liability. Such conduct may constitute a com-
mon law tort, but, without more, it does not amount to discrimination
against the employee because he is a man. "There perhaps `ought to

13
be a law against' . . . puerile and repulsive workplace behavior . . .
in order to protect the victims against its indignities and debilitations,
but . . . Title VII is not that law." McWilliams, slip op. at 8.

In sum, while harassment directed toward an individual employee
by another individual of the same gender may be actionable if it is
directed at the employee "because of" the employee's gender, the
plaintiff must overcome the presumption in that circumstance that the
harassment was not "because of" that employee's gender.

III

Regardless of whether Hopkins' same-gender sexual harassment is
actionable under Title VII, Hopkins still bears the burden of demon-
strating, in the context of this case, that Swadow's alleged harassment
was sufficiently severe or pervasive to create an objectively hostile or
abusive work environment and the harassment was directed at him
because of his sex.4

Not all sexual harassment that is directed at an individual because
of his or her sex is actionable. Title VII does not attempt "to purge
the workplace of vulgarity." Baskerville v. Culligan Int'l Co., 50 F.3d
428, 430 (7th Cir. 1995). As the Supreme Court recognized in Harris
v. Forklift Sys., Inc., 114 S. Ct. 367, 370 (1993), "Conduct that is not
severe or pervasive enough to create an objectively hostile or abusive
work environment--an environment that a reasonable person would
find hostile or abusive--is beyond Title VII's purview." See also
Meritor, 477 U.S. at 67 (recognizing that conduct amounts to action-
able sexual harassment only when it is "sufficiently severe or perva-
sive `to alter the conditions of [the victim's] employment and create
an abusive working environment'" (alteration in original) (citation
omitted)).
_________________________________________________________________
4 Generally, to establish a claim for sexual harassment under 42 U.S.C.
§ 2000e-2(a)(1), a plaintiff employee must prove that (1) the subject con-
duct was unwelcome; (2) it was based on the plaintiff's sex; (3) it was
sufficiently severe or pervasive to alter the plaintiff's conditions of
employment and to create an abusive work environment; and (4) it was
imputable on some factual basis to the employer. See Spicer v. Common-
wealth of Va., 66 F.3d 705, 710 (4th Cir. 1995) (en banc). But in this
case, elements (1) and (4) are not at issue.

14
In deciding whether the harassment to which Swadow allegedly
subjected Hopkins was sufficiently severe or pervasive to bring it
within Title VII's purview, we must examine the totality of the cir-
cumstances, including "[t]he frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably interferes with
an employee's work performance." Harris, 114 S. Ct. at 371. We rec-
ognize that the "line between a merely unpleasant working environ-
ment . . . and a hostile or deeply repugnant one" may be difficult to
discern. Baskerville, 50 F.3d at 431 (overturning jury verdict for
employee in Title VII suit because incidents did not amount to action-
able sexual harassment and employer took adequate remedial mea-
sures). After carefully considering the entire record before us,
however, we are convinced that the conduct of which Hopkins com-
plains was neither sufficiently severe nor sufficiently pervasive to
create an environment that a reasonable man would find hostile or
abusive.

For his claim, Hopkins relies on conduct by Swadow that was tem-
porally diffuse, ambiguous, and often not directed specifically at him.
First, the incidents that Hopkins recounts occurred intermittently over
a seven-year period, with gaps between incidents as great as a year.
That alone suggests the absence of a condition sufficiently pervasive
to establish Title VII liability. "A handful of comments spread over
months is unlikely to have so great an emotional impact as a concen-
trated or incessant barrage." Baskerville, 50 F.3d at 431.

Second, Swadow's alleged conduct toward Hopkins was sexually
neutral or, at most, ambiguous. According to Hopkins, Swadow bum-
ped into him, positioned a magnifying glass over his crotch, flipped
his tie over to see its label, gave him a congratulatory kiss in the
receiving line at Hopkins' wedding, and stared at him in the bath-
room. Notably, Hopkins has not asserted that Swadow ever made an
overt sexual proposition or touched Hopkins in a sexual manner.
While Swadow's conduct was undoubtedly tasteless and inappropri-
ately forward, we cannot conclude that it was "of the type that would
interfere with a reasonable person's work performance . . . to the
extent required by Title VII." Morgan v. Massachusetts Gen. Hosp.,
901 F.2d 186, 193 (1st Cir. 1990) (holding that allegations fell short
of Title VII liability where male plaintiff claimed that male co-worker

15
stood behind him and bumped into him while he mopped, "peeped"
at him in restroom, and asked him to dance at Christmas party).

Third, several of the incidents upon which Hopkins relies occurred
in group settings, and only Hopkins subjectively perceives them to
have been directed solely at him. On one occasion, Hopkins was
offended by Swadow's comment during a group discussion concern-
ing how to use a sexual organ to survive a plane crash. On another
occasion, he was offended by Swadow's comment--"Was it as good
for you as it was for me?"--made after Swadow forced himself into
a revolving door with a third party.

While we do not approve of Swadow's apparent willingness to
offend and provoke employees with his ambiguously sexual innuen-
dos, Title VII was not designed to create a federal remedy for all
offensive language and conduct in the workplace. When presented in
other Title VII cases with conduct of the type alleged by Hopkins in
this case, we have consistently affirmed summary judgment dismiss-
ing the claims. See, e.g., Dwyer v. Smith, 867 F.2d 184, 187-88 (4th
Cir. 1989) (affirming directed verdict in Title VII case despite evi-
dence that female police officer was subjected to pornographic mate-
rial placed in her station mailbox and to fellow officers' sexually
explicit conversations); Harris v. Clyburn, 1995 WL 56634, at *3 (4th
Cir. 1995) (unpublished) (per curiam) (affirming summary judgment
for employer where "only specific factual allegation of sexual harass-
ment [was] occasional tickling [by her male superior] in the hall-
way"); Cobbins v. School Bd. of Lynchburg, Va., No. 90-1754, slip
op. at 7-10 (4th Cir. Jan. 14, 1991) (unpublished) (per curiam) (hold-
ing that where male teacher asked female teacher out for a drink,
asked her to perform tasks she perceived as secretarial, and struck her
in a fight, purported harassment was not gender-based and was not
sufficiently severe or pervasive). See also Baskerville, 50 F.3d at 430-
31 (overturning verdict because evidence that her male superior called
her "pretty girl," commented on her attire, and made "vulgar banter
tinged with sexual innuendo" did not establish actionable Title VII
claim).

Accordingly, we hold in this case that as a matter of law the con-
duct of which Hopkins complains, spread over seven years with sig-
nificant time gaps between incidents, does not create a sufficiently

16
hostile environment on which to rest a Title VII claim. Because we
conclude that Swadow's alleged conduct was not sufficiently severe
or pervasive for Hopkins to establish a prima facie case of sexual
harassment under Title VII, we do not reach the question of whether
it was directed at Hopkins because of his sex.

IV

Hopkins also contends that the district court erred in dismissing his
claim that BG&E retaliated against him for complaining to manage-
ment about Swadow's offensive conduct and for filing an EEOC com-
plaint that alleged discriminatory sexual harassment. The district
court concluded that Hopkins did not need to prevail on his underly-
ing discrimination claim to succeed on his retaliation claim, but that
he had failed to show that BG&E had taken any adverse employment
action against him. Hopkins, 871 F. Supp. at 835-37. We agree.

Title VII prohibits an employer from discriminating against an
employee in retaliation for that employee's opposition to, or com-
plaint about, an unlawful employment practice. 42 U.S.C. § 2000e-
3(a). To establish a prima facie case of retaliation, Hopkins must
show that (1) he engaged in protected activity; (2) his employer took
adverse employment action against him; and (3) a sufficient causal
connection existed between his protected activity and his employer's
adverse employment action. See McNairn v. Sullivan, 929 F.2d 974,
980 (4th Cir. 1991).

The record in this case, considered in the light most favorable to
Hopkins, reveals that BG&E's entire Photographic Services Unit,
including both Swadow's and Hopkins' positions, were eliminated as
part of a 1,100-employee reduction in force and corporate restructur-
ing that took place in October 1993. Hopkins continued to receive a
full salary and benefits until January 1994 and could have continued
his employment with BG&E in another capacity had he not voluntar-
ily chosen to terminate it.

In addition to his alleged discharge, Hopkins attempts to character-
ize various other employment actions as adverse. For example, Hop-
kins was advised by BG&E officials on more than one occasion that
he should forget about Swadow's conduct and "put it behind" him. On

17
another occasion, Hopkins received a formal disciplinary warning for
substituting a color print for an original--conduct that Hopkins denies
--but the warning was subsequently removed from his personnel
record. Both Hopkins and Swadow were required to undergo a "Fit-
ness for Duty" psychological examination. Finally, although Hopkins'
overall ratings on his evaluations remained the same after his com-
plaints to management, Swadow wrote that Hopkins needed improve-
ment in "job behavior" and "work relations."

We agree with the district court that no reasonable jury could find
on these facts that Swadow or any other BG&E official took any
adverse employment action against Hopkins because of his com-
plaints about alleged sexual harassment. Hopkins was not discharged
from his employment and the comments in question never amounted
to or resulted in any adverse employment action.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

WILKINSON, Chief Judge, with whom HAMILTON, Circuit Judge,
joins, concurring in part:

We are pleased to concur in parts I, III, and IV of Judge Niemey-
er's opinion. Those sections ably demonstrate that every example of
offensive and tasteless workplace conduct does not provide the basis
of a cause of action under Title VII. See, e.g., Baskerville v. Culligan
Int'l Co., 50 F.3d 428 (7th Cir. 1995). The discussion in part II on the
actionability of same sex harassment, however, is quite unnecessary
to the resolution of this case, and we do not concur in it.

Moreover, the inadvisability of undertaking such a discussion is
underscored by Title VII itself. The general language used by Con-
gress in Title VII makes its intentions with respect to the actionability
of same sex conduct ambiguous at best. To expand the reach of Title
VII to same sex harassment risks dragging a multitude of workplace
conflicts before the courts that may well exceed both the language
and intent of the statute. Indeed, it is anything but clear to us exactly
which kinds of workplace behavior will be held to be actionable
under this view and which will not.

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Finally, the position taken by our good colleague in section II is in
tension with this court's decision in McWilliams v. Fairfax County
Board of Supervisors, 72 F.3d 1191, 1195 (4th Cir. 1996) (rejecting
Title VII hostile-environment claims "where both the alleged harass-
ers and the victim are heterosexuals of the same sex"). The court
explained in McWilliams that same sex harassment all too often takes
place not "`because of the [target's] sex'" but rather "`because of' the
victim's known or believed prudery, or shyness, or other form of vul-
nerability to sexually-focused speech or conduct" or because of the
perpetrator's own sexual "obsession," "insecurity," "vulgarity," or
simple "meanness of spirit." Id. at 1196. While McWilliams techni-
cally did not reach the question addressed by Judge Niemeyer in sec-
tion II, id. at 1195 n.4, it surely suggested that the many possible
explanations for same gender incidents dictate caution in recognizing
them as the basis for a Title VII action. If Title VII is to be extended
to cover a whole new generation of same sex harassment claims, it is
far better that it be accomplished by legislative action than by judicial
fiat. The last place to reach out to recognize such claims is a case
whose lack of merit is, in all events, apparent.

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