In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2529
MICHAEL J. HAMM,
Plaintiff-Appellant,
v.
WEYAUWEGA MILK PRODUCTS, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-C-1283—William E. Callahan, Jr., Magistrate Judge.
____________
ARGUED DECEMBER 10, 2003—DECIDED JUNE 13, 2003
____________
Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WILLIAMS, Circuit Judge. Michael Hamm alleges that
he was sexually harassed at work by his male coworkers
and was terminated as a result of his complaints about
the harassment in violation of Title VII. The district
court concluded that Hamm could not establish that he
was discriminated against “because of” sex as required by
Title VII and granted summary judgment in favor of
Hamm’s employer, Weyauwega Milk Products. Because
we agree with the district court that Hamm’s evidence
only supports work performance conflicts or speculation
concerning his sexual orientation, we affirm.
2 No. 02-2529
I. BACKGROUND
Michael Hamm, a heterosexual male, began working
at Weyauwega Milk Products, a producer of dairy products
including cheese, in 1992. Hamm held numerous posi-
tions during his employment and his job responsibilities
generally included cleaning the equipment and work area,
maintaining the supplies, and filling in for other produc-
tion employees during breaks or days off. Hamm was
regarded as a good employee until approximately 1997,
when Weyauwega hired a friend of Hamm’s, Jeff Zietlow.
Beginning in early 1998, Hamm filed a number of com-
plaints with Weyauwega management and with the Wiscon-
sin Equal Rights Division (ERD) alleging harassment
by his male coworkers. The Weyauwega plant where
Hamm worked was almost entirely male; no women worked
in any of the areas of the plant in which Hamm worked.
Hamm filed his first written complaint with Weyauwega
management on January 15, 1998, stating that Dean
Bohringer, one of Hamm’s coworkers, threatened that if
Hamm did not do his job properly, then Bohringer would
“kick [his] ass to make [him] do so.”1 Hamm also de-
scribed an incident in the break room in which Bohringer
allegedly threw the door open and “started cursing and
swearing” at Hamm for failing to replace an empty barrel
of cleaning fluid. Hamm further alleged that Bohringer
threw the chemical barrel across the room, screamed at
him, and told him he should quit. Hamm admits that he
yelled back at Bohringer during the incident. Hamm’s
complaint related another event during which Bohringer
yelled at Hamm because, in Hamm’s view, Bohringer
1
Many of the comments made in connection with Hamm’s
complaints contain vulgar and offensive language, but we believe
direct quotes of the language used are required in order to
accurately describe Hamm’s allegations.
No. 02-2529 3
believed that he was disrupting equipment and not work-
ing quickly enough.
Also, beginning in late 1997, and continuing into 1998,
Weyauwega began to have concerns about Hamm’s work
performance. Many of the complaints about Hamm’s work
performance by Weyauwega management and Hamm’s
coworkers centered around their perception that Hamm
spent too much time talking to Zietlow and engaging
in horseplay. In response to Hamm’s initial complaint,
Weyauwega instructed Bohringer to “cut down on his
swearing when he is mad” and told Hamm to reduce the
amount of time he visits with other employees and to
more closely follow plant procedures.
During the summer of 1998, Weyauwega documented a
number of work errors committed by Hamm including
failing to perform his work duties, damaging a milk truck,
and spending too much time talking to Zietlow. Weyauwega
eventually gave Hamm a final written warning letter
dated August 18, 1998 instructing him to 1) stop the
horseplay in which he was involved, 2) stop talking to Jeff
Zietlow other than for job-related activities, and 3) cooper-
ate with fellow employees and act as a team player.2
In September of 1998, Hamm filed his first complaint
with the ERD. His complaint alleged that he was called a
“faggot,” “bisexual,” and “girl scout,” and that his coworker
2
Beginning in late summer 1998, Hamm also filed a number of
reports with Weyauwega police regarding incidents at work or
involving work employees. For example, in August 1998, Hamm
complained that he was being verbally abused at work, stating
that his coworkers were yelling at him, complaining that he
was not doing his job, and turning his machines on and off. As
similar claims were made in Hamm’s complaints to Weyauwega
and the ERD, we address these allegations through Hamm’s
complaints to those organizations.
4 No. 02-2529
Dean Bohringer threatened to snap his neck and threw
things at him. Hamm also stated he was retaliated against
for reporting these incidents to Weyauwega management.
In response to Hamm’s complaints, Weyauwega set up a
meeting between Weyauwega management, Hamm, and
Bohringer. During the meeting, Bohringer apologized to
Hamm, and Hamm promised to focus on correctly perform-
ing his job.
Although exact dates of its genesis are unknown, it is
undisputed that during this time a rumor existed among
workers at the plant that Hamm and Zietlow’s friend-
ship was romantic in nature. Hamm’s coworkers thought
it odd when Hamm gave Zietlow a boat and let him use
his four-wheel vehicle. The sometimes contentious nature
of their friendship also drew the attention of coworkers.
Hamm called the police department in January 1999 to
report that Zietlow, then under age 21, was in a bar
drinking and again in February 1999 to report that
Zietlow threatened him. Around the same time, Hamm
called the police to report that his vehicle had been dam-
aged in the Weyauwega parking lot, and he indicated in his
deposition that he believed Zietlow had damaged the
vehicle. He also reported that Zietlow had scratched his
face. Hamm sued Zietlow in January of 1999 for the
return of his four-wheeler, two chain saws, and money
that Zietlow had borrowed but not returned. Zietlow was
suspended by Weyauwega in early 1999 for striking
Hamm’s brother, Joe Hamm, also a plant employee, with a
pipe. After Zietlow returned to work, Hamm reported that
Zietlow soaked him with a water hose. Zietlow was termi-
nated in March of 1999.
Hamm filed his second complaint with Weyauwega on
March 24, 1999, claiming that coworker Fred Kivisto
accused Hamm of “looking out of the corner of my eyes
at him” and had threatened Hamm with a pipe. Hamm
also alleged that Kivisto told coworkers that Hamm was
No. 02-2529 5
a homosexual and warned them not to bend over in front
of him. Kivisto admitted in his deposition that he told
Hamm “not to be sizing me up.”
Approximately two months later, on May 25, 1999, Hamm
filed another complaint with Weyauwega alleging that
Mike Fischer, a coworker, and Bohringer were watching
him while he worked. He also complained that Weyauwega
had not adequately addressed his earlier complaints.
Hamm filed a fourth written complaint with Weyauwega
on June 7, 1999, claiming that Bohringer yelled obscenities
at him, ordering him to get off a forklift. He also re-
peated his complaint that Kivisto told coworkers not to
bend over in front of him.
Weyauwega investigated Hamm’s newest complaints.
According to Weyauwega, its interviews with Hamm’s
coworkers revealed that they were frustrated with his
inability to complete work tasks correctly and with his
instigation of problems and rumors at the plant. During his
interview for the investigation, Hamm suggested that
Bohringer and Fischer were trying to get him fired.
Hamm also filed a second complaint with the ERD in
early June 1999, alleging retaliation by his coworkers for
filing his first ERD complaint. Hamm alleged, among other
things, that Carl Wodrich, a coworker, and Fischer com-
plained about Hamm’s work performance and interfered
with his work equipment in retaliation for Hamm’s ERD
complaint; that Kivisto threatened him with a pipe; that
Frank Young, another coworker, threatened to “shove the
water hose up [Hamm’s] ass” after he was hit with the
water from the hose; that management “thought I was ‘that
way’ because they had reason to believe Jeff Zietlow
might be ‘that way’ ”; and that “Dean Bohringer stated I
was a worthless piece of human flesh and later on shoved
me or purposely ran into me in the hallway.”
Weyauwega offered Hamm a severance agreement on
June 14, 1999, with two and one-half weeks’ pay; Hamm
6 No. 02-2529
negotiated an increase to seven weeks’ pay on June 15,
1999, but left his final approval of the agreement open.
Hamm underwent an exit interview reviewing COBRA
and 401(k) paperwork, and Hamm cleaned out his locker.
Hamm was not scheduled for work again, and he filed a
claim for unemployment compensation on June 22, 1999.
In a letter dated July 7, 1999, Weyauwega informed
Hamm that it regarded him as “voluntary quit” as of July
1, 1999, unless he agreed to an enhanced severance agree-
ment.
On July 9, 1999, Hamm filed a third complaint with the
ERD restating his complaints about Bohringer’s outburst
while Hamm was on the forklift and the comments by
Kivisto. He also alleged that he was terminated in retalia-
tion for his complaints.
In September of 2000, Hamm filed suit in federal court,
alleging that he was sexually harassed and retaliated
against for filing complaints with Weyauwega and with
the Wisconsin Equal Rights Division in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.
After at least nineteen depositions were taken and dis-
covery was exchanged, Weyauwega moved for summary
judgment. The district court granted summary judgment
in favor of Weyauwega. Hamm appeals.
II. ANALYSIS
We review the district court’s decision to grant sum-
mary judgment de novo. Hilt-Dyson v. City of Chicago, 282
F.3d 456, 462 (7th Cir. 2002). Summary judgment is
properly entered “against a party who fails to make a
showing sufficient to establish the existence of an ele-
ment essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). In determining wheth-
er a genuine issue as to any material fact exists, we con-
No. 02-2529 7
strue all facts and draw all reasonable inferences in
favor of Hamm, the nonmoving party. See Hilt-Dyson, 282
F.3d at 462.
A. Sexual harassment claim
Hamm’s claim, that he was sexually harassed by his
male coworkers, requires us to navigate the tricky legal
waters of male-on-male sex harassment. The protections
of Title VII extend to both women and men. Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)
(“Title VII’s prohibition of discrimination ‘because of . . . sex’
protects men as well as women.”). Further, sexual harass-
ment claims are not limited to situations in which an
individual is harassed by someone of the opposite sex, but
may be made in cases such as this one, when same-
sex sexual harassment is alleged. Id. at 79. The protections
of Title VII have not been extended, however, to permit
claims of harassment based on an individual’s sexual
orientation. Hamner v. St. Vincent Hosp. & Health Care
Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000). Therefore, in
same-sex harassment cases, the central question is wheth-
er the harassment occurred “because of the plaintiff’s
sex.” Id.
Hamm alleges that his coworkers did not believe he fit
the sexual stereotype of a man, and that their sexual
stereotyping is evidence of discrimination “because of” sex.
See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52
(1989) (recognizing sex stereotyping as evidence of sex
discrimination); Spearman v. Ford Motor Co., 231 F.3d
1080, 1085 (7th Cir. 2000). In order to evaluate Hamm’s
claim, we must “consider any sexually explicit language
or stereotypical statements within the context of all of
the evidence of harassment in the case [to] determine
whether the evidence as a whole creates a reasonable
inference that the plaintiff was discriminated against
8 No. 02-2529
because of his sex.” Id. A careful review of the record in this
case leads us to conclude that Hamm has not made a
showing sufficient to establish that he was discriminated
against “because of” sex.3 Even drawing all reasonable
inferences in Hamm’s favor, his litany of complaints about
the actions of his coworkers inescapably relate to either
Hamm’s coworkers’ disapproval of his work performance
or their perceptions of Hamm’s sexual orientation.
Hamm’s own characterizations of many of the occur-
rences underlying his complaint demonstrate that he
believed they were related to his job performance. For
example, when explaining Bohringer’s alleged verbal abuse
during his deposition, Hamm surmised that Bohringer
swore at him “because apparently he figured I didn’t do
my job.” This rationale is a restatement of Hamm’s Jan-
uary 15, 1998 complaint in which he alleged that Bohring-
er threatened to “put him in a wheelchair” and “snap his
neck” and threw a chemical barrel across the room after
finding it empty. These incidents, too, are explained by
3
Our analysis focuses on Hamm’s need to show he was discrimi-
nated against “because of ” sex because this appears to be the only
element of Hamm’s sexual harassment claim contested by
Weyauwega. For example, Weyauwega’s brief does not discuss
important questions such as whether all of the allegedly discrimi-
natory conduct occurred within 300 days of the filing of Hamm’s
complaint or is properly considered under the continuing violation
doctrine, see Hall v. Bodine Electric Co., 276 F.3d 345, 353 (7th
Cir. 2002), whether the harassment suffered by Hamm was
“sufficiently severe or pervasive to alter the condition of the
victim’s employment and create an abusive working environment,”
Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), or whether
Weyauwega acted negligently in responding to Hamm’s com-
plaints about his coworkers’ conduct, as required to establish
its vicarious liability for sexual harassment, see Hall, 276 F.3d
at 356.
No. 02-2529 9
Hamm in terms of his job performance: “I have been
subjected to unnecessary verbal abuse from Dean Bohringer
on many occasions in the past year, I have been threatened
to quit or be killed. . . . He claims I do not do my job, I feel
he has no right to threaten me if this is his opinion.”
Indeed, Hamm concludes the complaint with the observa-
tion that: “The company refuses to have any harassment
[illegibile] nature cease, it is always ok to be threatened
when other employees feel you are not doing your job.”
Similarly, Hamm alleges that on another occasion Bohring-
er told him to “Get off that forklift motherfucker. You
stupid motherfucker,” after Bohringer discovered Hamm
on the forklift that Bohringer typically used. Hamm’s
statements make evident that these complaints related
to work-related disputes, more specifically, an apparent
belief by Bohringer that Hamm did not perform his job
adequately.
Expressions of frustration with Hamm’s work perfor-
mance were not limited to Bohringer. Hamm’s June 1999
ERD complaint succinctly explains an episode with Frank
Young: “On May 4th Frank Young threatened to shove
a water hose up my ass for not doing my job correctly.”
Hamm also alleges that Mike Fischer tried to force his
equipment to malfunction, but also complains that Fischer
“made up a story I was not doing my job.” Hamm has not
produced any evidence to show that these episodes are
related to anything other than work-related disputes. See
Spearman, 231 F.3d at 1085 (use of sexually-explicit in-
sults to express anger at plaintiff over work-related con-
flicts may be juvenile, but is not sex discrimination).
With respect to the other incidents that Hamm submits
as evidence of harassment, all the evidence points to the
conclusion that they relate to speculation by his cowork-
ers about his sexual orientation. Again, Hamm’s own com-
ments indicate that he perceived the conduct of his cowork-
10 No. 02-2529
ers to relate to their belief about his sexual orientation.
Hamm admits that his close friendship with Jeff Zietlow
was perceived by his coworkers to be romantic in nature.
In his first complaint to the ERD, he explained, “Dean
Bohringer believes that me and another individual are
gay at work, he constantly refers to me and Jeff Zietlow
as faggots. Dean has threatened to kill me, snap my neck
for what he thinks to be true.” In a note written Novem-
ber 12, 1998, and appended to his deposition, Hamm links
judgment of his sexuality by his peers to several of his
allegations: “I am single so therefore it would more so [be]
believed that I was homosexual, I have had numerous
people at the plant pick on me on account of this. . . .” His
March 24, 1999 complaint contains a similar explana-
tion: “Fred tells me and other people that I am homosexual
and not to bend over by me. . . . I am so sick of being
threatened for what people perceive!”
In addition to assessing the way in which his coworkers’
statements were experienced by Hamm, see Oncale, 523
U.S. at 81, we also must consider, as in any sex harass-
ment case, the “social context in which the particular
behavior occurs.” Id. Here it is difficult to separate many
of Hamm’s complaints from the significant amount of
horseplay that occurred at the Weyauwega plant. The
district court described the evidence in the record of the
horseplay at Weyauwega:
“Hamm testified that during free time, more specifi-
cally, ‘every evening and every day,’ employees
spray each other with water hoses; that someone
stuck a bed in the women’s locker room as a prank;
that Weyauwega employees went into a coworkers’
locker and ‘labeled his Vaseline jack-off jelly’; and
that Bohringer would frequently wrestle/engage
in physical horseplay with coworkers during work
time. Hamm’s brother, Joe Hamm, confirmed that
No. 02-2529 11
horseplay takes place at Weyauwega, including
employees spraying each other with water hoses
daily and throwing cheese curds at each other
numerous times each day.”
199 F. Supp.2d 878, 896 n.1 (E.D.Wis. 2002). Hamm ad-
mits that even his alleged harassers were the victims of
workplace pranks. For example, in his deposition, Hamm
described an incident directed at Bohringer in which one
of the workers wrote “Dean plus [male name]” all over a
door. Hamm himself was disciplined for excessive par-
ticipation in horseplay at the plant, particularly in his
final warning. Of course we do not mean to suggest that
the presence of horseplay in a workplace precludes a claim
of sexual harassment, but we do recognize that, in some
cases, sexually explicit remarks among male coworkers
may be “simply expressions of animosity or juvenile pro-
vocation.” Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th
Cir. 1997).
Even Hamm’s claim that Bohringer referred to him as
“girl scout,” the strongest factual allegation he makes
that his coworkers’ actions were linked to his nonconform-
ance to sex stereotypes, does not establish that he was
discriminated against because of his sex. In his deposi-
tion, Bohringer alleged that he referred to his colleagues
with this term indiscriminately, and one of Weyauwega’s
managers, Dan Stearns, testified that Bohringer had
even used the term to refer to him. Hamm acknowledges
that Bohringer called other men at the plant “girl scouts,”
but he calls this fact “immaterial.” Bohringer’s use of
the term to refer to other men, including a supervisor, is
hardly immaterial; Hamm cannot point to its use as
persuasive evidence that he was treated differently be-
cause of his sex when other men at the plant were referred
to by the same name. Because there is nothing to sug-
gest that Bohringer viewed the other men at the plant
12 No. 02-2529
as nonconforming to sexual stereotypes, his use of the
term to describe Hamm cannot support an inference of
sex discrimination.4
That the conduct complained of by Hamm does not fall
within a sexual stereotyping claim cognizable under
Title VII is made even more evident by a comparison to
the cases in which courts have found such a claim. In
Price Waterhouse, the plaintiff was a woman passed over
for a promotion, and partners in the company remarked
that she was “macho,” “overcompensated for being a
woman,” and needed to “walk more femininely, talk more
femininely, dress more femininely, wear more make-up,
have her hair styled, and wear jewelry.” 490 U.S. at 235.
In Doe v. City of Belleville, Illinois, 119 F.3d 563, 568, 576-
77 (7th Cir. 1997), vacated, 523 U.S. 1001 (1998), the male
plaintiffs’ sex was constantly questioned; they were ridi-
culed for wearing an earring, threatened with sexual
assault, and one of the plaintiffs’ testicles was grabbed to
determine whether he was male or female. In Nichols
v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874
(9th Cir. 2001), the male plaintiff was attacked for walk-
ing and carrying his tray “like a woman,” mocked for not
having sexual intercourse with a waitress who was his
4
Other allegations Hamm makes in support of his sex harass-
ment claim do not add up. For instance, Hamm argues that
Bohringer called him “kid” and remarked that he had a high-
pitched voice. Hamm takes these statements out of context from
Bohringer’s deposition; Bohringer commented that Hamm’s voice
was high-pitched when describing how Hamm screamed at him.
In another example, Hamm argues that Kivisto threatened to take
him to Lake Michigan and leave him at the bottom of the lake.
Yet Hamm concedes in his deposition that this incident took
place almost five years before he first complained of harassment,
and thus it cannot be used to support his claim.
No. 02-2529 13
friend, referred to as “she” and “her,” and experienced
vulgar name-calling cased in female terms. Unlike Doe and
Azteca, where the plaintiffs presented additional evidence
that the harassment implicated sex rather than sexual
orientation, Hamm’s allegations are linked either to his
coworkers’ perceptions of his work performance or his
sexual orientation. See Oncale, 523 U.S. at 80 (“[W]ork-
place harassment . . . is [not] automatically discrimina-
tion because of sex merely because the words used have
sexual content or connotations.”).
Hamm’s case more closely tracks Spearman v. Ford Motor
Co., 231 F.3d 1080 (7th Cir. 2000). In that case, Spearman
claimed that vulgar and sexually explicit insults directed
at him and graffiti posted by his coworkers were motivated
by sexual stereotyping, arguing that his coworkers per-
ceived him to be too feminine to fit the masculine image
at Ford. Id. at 1085. He alleged that a coworker called
him a “little bitch,” and stated that he hated Spearman’s
“gay ass,” that workplace graffiti linked him with AIDS
and labeled him as gay, and that he was assigned duties
that he believed should be reserved for women. Id. at 1082-
84. This court rejected Spearman’s claim that this evi-
dence established discrimination because of sex and in-
stead found that the evidence “clearly demonstrates that
Spearman’s problems resulted from his altercations
with coworkers over work issues and because of his ap-
parent homosexuality.” Id. at 1085. Hamm attempts to
distinguish Spearman by arguing that the plaintiff in
that case was homosexual and he is heterosexual. But
we do not focus on the sexuality of the plaintiff in determin-
ing whether a Title VII violation has occurred. See
Hondo, 125 F.3d at 415 (“In the different sex situation, we
do not ask a slew of subjective and invasive questions
about the sexual orientation of the perpetrator or the
victim. We ask whether the treatment meted out created
a hostile work environment because the victim was singled
14 No. 02-2529
out because of his or her gender.”). Indeed, Hamm pre-
sents a less difficult case than Spearman in that Hamm
himself characterizes the harassment of his peers in terms
of work-related disputes and perceptions of his sexual
orientation and does not link their comments to his sex.
Even when construing all facts and drawing all reasonable
inferences in Hamm’s favor and considering Hamm’s
coworkers’ conduct relating to his job performance in
conjunction with their comments regarding his sexual
orientation in order to form the fullest picture, Hamm
has failed to make a sufficient showing that he was ha-
rassed because of his sex.5
B. Retaliation claim
Hamm also alleges that he was terminated by
Weyauwega in retaliation for filing complaints of sexual
harassment with the company and the ERD. Weyauwega
claims that Hamm was not terminated, and that based on
his application for unemployment compensation and his
5
We recognize that distinguishing between failure to adhere to
sex stereotypes (a sexual stereotyping claim permissible under
Title VII) and discrimination based on sexual orientation (a claim
not covered by Title VII) may be difficult. This is especially true
in cases in which a perception of homosexuality itself may result
from an impression of nonconformance with sexual stereotypes.
Doe, 119 F.3d at 593 (“A homophobic epithet like ‘fag’ for example,
may be as much of a disparagement of a man’s perceived effemi-
nate qualities as it is of his perceived sexual orientation. . . . [I]t
is not always possible to rigidly compartmentalize the types of
bias that these types of epithets represent.”). We need not face
this difficult problem here because Hamm does not present
evidence to establish that the conduct he complains of “was not
merely tinged with offensive sexual connotations, but actually
constituted ‘discrimination because of sex.’ ” Oncale, 523 U.S.
at 81.
No. 02-2529 15
refusal to respond to the severance agreement, he was
properly regarded as “voluntarily quit.” We need not
resolve this dispute, for even if Hamm was terminated
he cannot make out a case for retaliation under Title VII.
Title VII prohibits an employer from discriminating
against an employee “because he has opposed any prac-
tice made an unlawful employment practice by” Title VII.
42 U.S.C. § 2000e-3(a). In other words, Title VII protects
an employee from “retaliation for complaining about the
types of discrimination it prohibits.” Miller v. Am. Family
Mutual Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000).
Hamm’s sexual harassment claim fails because he has
not shown that he was discriminated against “because of”
sex, as required under Title VII. His retaliation claim
was properly decided by the district court for the same
reason: his complaints to Weyauwega and the ERD did
not concern an employment practice that violated Title
VII. See Hamner, 224 F.3d at 706-07.
III. CONCLUSION
For the forgoing reasons, we AFFIRM the decision of the
district court.
POSNER, Circuit Judge, concurring. Judge Williams’s
opinion is consistent with the cases and the facts, and
it reaches a result (denial of liability) that I agree with.
I cannot fairly quarrel with the methodological conserva-
tism of her approach. But I think it worth recording my
conviction that the case law has gone off the tracks in
the matter of “sex stereotyping” and that if it got back
16 No. 02-2529
on, this case could be decided on a simpler and more
intuitive ground and one that would reduce future litiga-
tion.
The case law as it has evolved holds, as Judge Williams
explains, that although Title VII does not protect homo-
sexuals from discrimination on the basis of their sexual
orientation, it protects heterosexuals who are victims of
“sex stereotyping” or “gender stereotyping.” Spearman
v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000)
(“the record . . . shows that Spearman’s co-workers ma-
ligned him because of his apparent homosexuality, and
not because of his sex” (so no liability)); Bibby v. Philadel-
phia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir.
2001) (if “the harasser was acting to punish the victim’s
noncompliance with gender stereotypes,” then liability);
Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d
864, 874-75 (9th Cir. 2001) (same); Schmedding v. Tnemec
Co., 187 F.3d 862, 865 (8th Cir. 1999) (same) (“although
Schmedding concedes that the use [in his complaint] of
the phrase ‘perceived sexual preference’ may have been
confusing, he asserts that the phrase indicates or shows
that the harassment included rumors that falsely labeled
him as homosexual in an effort to debase his masculinity,
not that he was harassed because he is homosexual or
perceived as being a homosexual”).
The origin of this curious distinction, which would be
very difficult to explain to a lay person (an indication, often
and I think here, that the law is indeed awry), is the
Supreme Court’s decision in Price Waterhouse v. Hopkins,
490 U.S. 228 (1989). Part of the evidence that the plain-
tiff in that case had been denied promotion because she
was a woman was that her male superiors hadn’t liked
her failure to conform to their expectations regarding
feminine dress and deportment. Id. at 235-36. That was
indeed a reason to suspect that the firm discriminated
against women. But there is a difference that subsequent
No. 02-2529 17
cases have ignored between, on the one hand, using evi-
dence of the plaintiff’s failure to wear nail polish (or, if
the plaintiff is a man, his using nail polish) to show that
her sex played a role in the adverse employment action
of which she complains, and, on the other hand, creating
a subtype of sexual discrimination called “sex stereotyp-
ing,” as if there were a federally protected right for male
workers to wear nail polish and dresses and speak in
falsetto and mince about in high heels, or for female
ditchdiggers to strip to the waist in hot weather. If a
court of appeals requires lawyers presenting oral argu-
ment to wear conservative business dress, should a male
lawyer have a legal right to argue in drag provided that
the court does not believe that he is a homosexual, against
whom it is free to discriminate? That seems to me a very
strange extension of the Hopkins case.
The “logic” of the extension is that if an employer disap-
proves of conduct by a man that it would not disapprove
of in a woman, or conduct by a woman that it would not
disapprove of in a man, the disapproval is “because of” sex.
What is true, as I have said, is that this asymmetry of
response may be evidence of sex discrimination; but to
equate it to sex discrimination is a mistake. If an employer
refuses to hire unfeminine women, its refusal bears more
heavily on women than men, and is therefore discrimina-
tory. That was the Hopkins case. But if, as in this case,
an employer whom no woman wants to work for (at least
in the plaintiff’s job classification) discriminates against
effeminate men, there is no discrimination against men,
just against a subclass of men. They are discriminated
against not because they are men, but because they are
effeminate.
If this analysis is rejected, the absurd conclusion fol-
lows that the law protects effeminate men from employ-
ment discrimination, but only if they are (or are believed
to be) heterosexuals. To impute such a distinction to the
18 No. 02-2529
authors of Title VII is to indulge in a most extravagant
legal fiction. It is also to saddle the courts with the mak-
ing of distinctions that are beyond the practical capacity
of the litigation process. Hostility to effeminate men and
to homosexual men, or to masculine women and to lesbi-
ans, will often be indistinguishable as a practical matter,
especially the former. Effeminate men often are disliked
by other men because they are suspected of being homo-
sexual (though the opposite is also true—effeminate
homosexual men may be disliked by heterosexual men
because they are effeminate rather than because they are
homosexual), while mannish women are disliked by some
men because they are suspected of being lesbians and
by other men merely because they are not attractive to
those men; a further complication is that men are more
hostile to male homosexuality than they are to lesbianism.
To suppose courts capable of disentangling the motives
for disliking the nonstereotypical man or woman is a
fantasy.
Inevitably a case such as this impels the employer to
try to prove that the plaintiff is a homosexual (the em-
ployer’s lawyer actually said at the argument that a
plaintiff’s homosexuality would be a complete defense to a
suit of this kind) and the plaintiff to prove that he is a
heterosexual, thus turning a Title VII case into an in-
quiry into individuals’ sexual preferences—to what end
connected with the policy of the statute I cannot begin
to fathom. An unattractive byproduct of the inquiry is a
gratuitous disparagement of homosexuals—as when
Hamm in his brief, remarking on how “his harassers
tormented him with the ultimate attack on his masculinity,
namely, barraging him with every vulgar, slang phase
for a homosexual,” concludes: “For a heterosexual male,
such slurs are tantamount to verbal castration” (emphasis
mine)—as if they were unwounding when directed at a
homosexual male.
No. 02-2529 19
“Sex stereotyping” should not be regarded as a form of
sex discrimination, though it will sometimes, as in the
Hopkins case, be evidence of sex discrimination. In most
cases—emphatically so in a case such as this in which, so
far as appears, there are no employees of the other sex
in the relevant job classification—the “discrimination”
that results from such stereotyping is discrimination
among members of the same sex. The distinction can be
illustrated by a pair of examples. If the producer of Antony
and Cleopatra refuses to cast an effeminate man as
Antony or a mannish woman as Cleopatra, he is not
discriminating against men in the first case and women
in the second, although he is catering to the audience’s
sex stereotypes. But if a fire department refused to hire
mannish women to be firefighters, this would be evi-
dence that it was discriminating against women, because
mannish women are more likely than stereotypically
feminine women to meet the demanding physical criteria
for a firefighter.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-13-03