Doe ex rel. Doe v. City of Belleville

MANTON,

Circuit Judge, concurring in part and dissenting in part.

I agree with the court’s conclusion that same-sex discrimination can be actionable under Title VII, but I reach that conclusion in more narrow circumstances and for different reasons. In view of those reasons, I do not agree that Title VII protects against the behavior that the Does experienced in this ease, and thus I dissent from the court’s reversal of the district court’s decision granting judgment to the City of Belleville. For the same reason I dissent from the court’s reversal of the Does’ equal protection claim. I concur with affirming the dismissal of the retaliation claim.1

*598I.

Although the Doe brothers were twins, apparently they were not alike in stature or dress. When they showed up for their summer job at the graveyard operated by the City of Belleville, H. was wearing an earring and J. was apparently overweight. Jeff Dawe and the other members of the full-time crew — all considerably older than the two sixteen-year-olds — quickly labeled H. as the “fag” or the “queer” and J. as the “fat boy.” Assuming the facts most favorable to the plaintiffs, as we must when defendants seek summary judgment, Dawe spearheaded a relentless verbal attack on H., accusing him in front of the others of being homosexual, and taunting him with threats of anal sex. Other members of the crew, including the supervisor Stan Goodwin, encouraged and participated in this crude banter. This mean-spirited teasing continued daily until Dawe, after returning from lunch in a somewhat inebriated state, grabbed H. by the crotch and declared to the other crew members “Well, I guess he is a guy.” Instead of Dawe being fired on the spot for the physical assault, it was business as usual at the graveyard, which presumably included the verbal taunting. The Does did not report the assault (or any of the verbal abuse, for that matter) to anyone. Instead they invented a reason for quitting and ultimately did. They then filed this lawsuit against the City claiming among other things violations under Title VII — specifically sexual harassment.

The question before us is simple, but as indicated by the length of the court’s majority opinion, the answer is quite complicated. Simply put, can a person of the same sex (here, male) have a claim under Title VII not only for sex discrimination, but also sexual harassment in a workplace? Of course, Title VII is our starting point: it is “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1).

Nothing in the language of Title VII limits its protection against sex discrimination to persons discriminated against by someone of the opposite sex. Nor would such a limit seem logical in certain circumstances. Consider for instance the case of a female supervisor who refuses to promote a woman into a sales position because the supervisor believes that a woman should not hold a position that requires overnight travel. Given that motive, the supervisor’s decision is illegal sex discrimination under Title VII because she is discriminating against the subordinate because of her sex — female. As would the case of a male supervisor who fires a male receptionist because he prefers that a woman have the job of greeting customers that come into the office; the supervisor terminated the receptionist because of his sex-male. Applying the plain language of Title VII leads to the inevitable conclusion that discriminating against someone because of that person’s sex is illegal, even if the discriminator is of the same sex as the victim.

These examples, however, involve cases of sex discrimination, not hostile work environment claims. Yet consistency requires us to examine the possibility of same-sex hostile work environment claims. In Meritor Savings Bank v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986), the Supreme Court agreed with the majority of lower courts that treated sexual harassment claims as a form of sex discrimination. Meritor made sexual harassment a subset of sex discrimination, i.e., sex discrimination is a general category of unlawful activity of which sexual harassment is a specific example. Accordingly, sexual harassment should share the attributes of a sex discrimination claim. In other words, if it is possible for a man to state a claim of sex discrimination against his male supervisor then it follows that a man could also state a claim of sexual harassment against that same superior.

A clear ease of same-sex sexual harassment occurs when an employee makes overt sexual advances on another employee of the same sex. Just such a scenario occurred in *599Yeary v. Goodwill Industries-Knoxville, Inc., 107 F.3d 443 (6th Cir.1997). There a male coworker asked a newly-hired male for a date and subsequently persisted with offensive sexual conversation, touching, and outright propositioning in person and on the telephone. This was a clear case where the harasser targeted someone of the same sex, not because of hostility, or animosity, but because of the individual’s sex.

There is no question that Yeary has sufficiently alleged that he was harassed “because of’ his sex. He claims that because he is a male, he was subjected to objectionable treatment to which women employees at Goodwill were not subjected. The complaint does not suggest that Yeary was targeted by Lee because Yeary was mentally disabled, or because Yeary was prudish about sex, or because of any of the other non-sex-based reasons that have presented themselves in other cases. The complaint suggests, instead, that Lee was targeting Yeary for sexual attention because Yeary was a male and he was attractive to Lee. If true, this creates an institutional disadvantage for Yeary in working at Goodwill, simply by virtue of the fact that he is a man. He had to put up with abuse and harassment that women there did not have to endure.

Id. at 448.

Similarly, in Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir.1997), where a homosexual male maitre d’ sexually harassed a male waiter, the Eleventh Circuit held that the waiter could maintain a Title VII claim against their restaurant-employer for same-sex sexual harassment. The Eleventh Circuit reasoned that “where a homosexual male propositions another male [t]he reasonably inferred motives of the homosexual harasser are identical to those of the heterosexual harasser — i.e., the harasser makes advances towards the victim because the victim is a member of the gender the harasser prefers.” Id. at 1505. The Eleventh Circuit then reversed the district court’s grant of summary judgment to the restaurant because Fredette had proffered evidence that “he was the victim of sexual advances to which members of the opposite gender were not subjected.”

Yeary and Fredette involved clear eases of actionable same-sex sexual harassment because the harassers’ motives were clear. So were the motives clear with the hypothetical examples of the female supervisor who would not promote a female subordinate to a challenging sales position or the male employer who fired the male receptionist. Each acted the way they did because of the victim’s sex. But the two hypotheticals were not hostile environment sexual harassment eases. It would be much more difficult to transpose the sales position and the receptionist hypotheticals into a same-sex sexual harassment claim because the harasser’s motive still has to be because of the victim’s sex, and other than the situation in Yeary and Fredette, it is difficult to devise a scenario where such a motive would exist.

While same-sex sexual harassment claims may be actionable, such claims cannot be separated from the statute from which they evolved. After all, Title VII requires that the discrimination be “because of such individual’s sex,” and does not expressly provide for sexual harassment claims. Yet, as the Supreme Court stated in Mentor, “without question, when a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor ‘discriminates on the basis of sex.’ ” Meritor, 477 U.S. at 64, 106 S.Ct. at 2404 (emphasis added). Because sexual harassment claims are derived from Title VII’s “because of such individual’s sex” language, such claims likewise must be based on harassment meted out “because of such individual’s sex.” This is why the Supreme Court originally defined sexual harassment in terms of sex discrimination: “discrimination based on sex [that] has created a hostile or abusive work environment.” Id. at 66, 106 S.Ct. at 2405. In the context of a hostile work environment claim, this means that the victim suffers the harassment because he is a man and not a woman, or because she is a woman and not a man. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir.1984).

In short, motive is dispositive, for while Mentor interpreted Title VII to prohibit sex*600ual harassment, at the same time it limited such claims to hostile work environments created because of the individual’s sex. This limitation was reaffirmed by Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), where throughout its main opinion the Court rearticulated Mentor’s holding that Title VII prohibits only those work environments made hostile or abusive to employees because of discrimination based on the individual’s race, sex, religion, or national origin. See, e.g., Harris, 510 U.S. 17, at 18, 114 S.Ct. 367, at 369, 126 L.Ed.2d 295 (“In this case we consider the definition of a discriminatorily ‘abusive work environment’ ... under Title VII”) (emphasis added); id. at 21, 114 S.Ct. at 370 (affirming Meritor’s holding that Title VII’s prohibition against discrimination in the “terms” or “conditions” of employment is violated whenever an employer “require[s] people to work in a discriminatorily hostile or abusive environment”) (emphasis added); id. at 22, 114 S.Ct. at 371 (Title VII is offended whenever “discriminatory conduct [is] so severe or pervasive that it create[s] a work environment abusive to employees because of their race, gender, religion, or national origin’’) (emphasis added). This proposition was reinforced by both concurring Justices. See id. at 25, 114 S.Ct. at 372 (the test for whether an employer has impermissibly altered an employee’s “conditions of employment” “is not whether work has been impaired, but whether working conditions have been discriminatorily altered”) (Scalia, J., concurring) (emphasis added); and id. (“The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed”) (Ginsburg, J., concurring). Thus to make out a sexual hostile work environment claim a plaintiff must demonstrate that he was subjected to the harassment or abuse “because of his sex.” That is the test. 42 U.S.C. § 2000e-2(a)(1). See also Carr v. Allison Gas Turbine Div., Gen. Motors Corp., 32 F.3d 1007, 1009 (7th Cir.1994) (“The first [question] is whether the plaintiff was, because of her sex, subjected to such hostile, intimidating, or degrading behavior, ... as to affect adversely the conditions under which she worked....”); Dey v. Colt Const. & Dev. Co., 28 F.3d 1446 (7th Cir.1994) (recognizing that “the test under Title VII is not whether work has been impaired, but whether working conditions have been discriminatorily altered”) (quotations and citations omitted) (emphasis added).

In Ulane, 742 F.2d at 1085, this court also made clear that Title VII’s prohibition of discrimination “because of such individual’s sex” means that it is “unlawful to discriminate against women because they are women and men because they are men.” In other words, “Congress intended that the term ‘sex’ in Title VII mean simply ‘man’ or ‘woman.’ ” See Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 749 n. 1 (4th Cir.1996) (Niemeyer, J., concurring). Or, more appropriately, in Congress’ own words, it is unlawful to discriminate against an individual “because of such individual’s ... sex.” DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2d Cir.1986) (“Sex” refers to membership in a class delineated by gender rather than sexual activity); DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d 327, 329-30 (9th Cir.1979) (“Title VII’s prohibition of ‘sex’ discrimination is on the basis of gender, and should not be judicially extended to include sexual preferences such a homosexuality”); Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 327 (5th Cir.1978) (same). The reason is apparent when we look at the other groups of persons afforded protection by Title VII. In making certain employer actions unlawful, Congress Prohibited discrimination against individuals because of their status as a member of certain classes drawn along the lines of race, color, religion or national origin. It is precisely — and only — in this context that the prohibition against discrimination “because of such individual’s ... sex” appears. Thus,when Congress outlawed discrimination “because of such individual’s sex,” it proscribed differentiating among individuals because of the employee’s status as a man or woman. See, e.g., DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2nd Cir.1986); Hopkins, 77 F.3d at 751. If the harassment was motivated by the victim’s sex (and it is severe and pervasive enough to alter the terms and conditions of employment), then it is illegal; if *601not motivated by the victim’s sex, then it is not a violation of Title VII.

The specific question, then, is whether the sexual harassment, the abusive environment created by the Belleville cemetery crew, was because of the fact that H. Doe was a male. In a same-sex hostile environment case it will be very difficult to satisfy this burden, because when a man harasses a man, or a woman harasses a woman, it is not reasonable to infer that the harassment was “because of such individual’s ... sex.” As the court in McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.1996), explained:

[W]e do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be “because of’ the [victim’s] “sex.” Perhaps “because of’ the victim’s known or believed prudery, or shyness, or other form of vulnerability to sexually-focussed speech or conduct. Perhaps “because of’ the perpetrators’ own sexual perversion, or obsession, or insecurity. Certainly, “because of’ their vulgarity and insensitivity and meanness of spirit. But not specifically “because of’ the victim’s sex.

McWilliams, 72 F.3d at 1195-96.

In Hopkins, 77 F.3d 745, the concurrence recognized the same reality, but from a slightly different angle: “When someone sexually harasses an individual of the opposite gender,” a “presumption arises that the harassment is ‘because of the victim’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. But when the harasser and the victim are of the same gender, the presumption is just the opposite because such sexually suggestive conduct is usually motived by entirely different reasons.

Hopkins, 77 F.3d at 752 (Niemeyer, J., concurring). The presumption of which Judge Niemeyer wrote in Hopkins, however, is not a presumption in the burden-shifting sense. Id. Rather, it is the recognition that what is a reasonable inference in opposite-sex cases is not reasonable in same-sex cases.

In this case, it is not reasonable to infer that Dawe harassed H. because H. was male, and not female. None of the comments Dawe made indicates that he subjected H. to harassment because he was a male. The moment H. Doe appeared at work, Dawe saw his earring and proceeded to call him a “fag” and “queer.” Dawe told him to “go back to San Francisco with the rest of the queers.” The statements as to whether H. Doe is a “boy or a girl” also do not indicate any discriminatory motive against either males or females. Finally, and certainly troubling beyond the sexual harassment issue, is Dawe’s physical assault of H. Doe. When Dawe grabbed H. Doe by the crotch he committed a criminal act, as well as a civil battery. He should have been fired immediately and been reported to the local police. Even this battery, however, does not create a reasonable inference that Dawe discriminated against H. Doe because he was male. In fact, this isolated criminal act should not overshadow and thus distort the issue at hand — whether the day-to-day verbal abuse suggesting degrading sexual acts to be imposed upon Doe by Dawe constitutes actionable sexual harassment. It did not. The harassment, while disgusting and intimidating, occurred because Dawe and the others found fault (and perhaps entertainment) because H. Doe wore an earring, not because H. was a male.

The case against J. is even weaker; it is completely void of any evidence that J. was harassed because he was a man. The crew members chided J. because they thought he was fat. Grown men calling a sixteen-year-old “fat boy” is needlessly cruel and offensive. Although it violates normal senses of decency (there seems not to be much decent about this graveyard crew) it does not violate Title VII. The one “sexual” comment directed at J. — that J. could have gotten H.’s poison ivy from anal sex with him — was an isolated comment, although similar to those usually directed at H. No matter how inappropriate or crude, the remark does not support the conclusion that Dawe harassed J. *602because he was a male; rather the evidence established that J. was harassed because the coworkers thought he was overweight. Therefore, J. cannot succeed on his claim of sexual harassment and the City of Belleville was entitled to summary judgment.

Likewise I believe that the City of Belle-ville is entitled to summary judgment on the equal protection claim. Initially, summary judgment is required on the equal protection claim for the same reason it is required on the Title VII claim, namely because the evidence fails to demonstrate that the Does were discriminated against because of their sex. However, there is an entirely separate reason: the Does failed to present any evidence that the City of Belleville had a custom or policy of discrimination. While the court believes that we need not address this point because Belleville did not raise the issue on appeal, it is the Does’ burden to present sufficient evidence entitling them to judgment, and the record fails to create the requisite inference that the City of Belleville had a custom or policy of discrimination. Additionally, contrary to the court’s pondering, the absence of a sexual harassment policy does not create a policy of sex discrimination. Nor can the knowledge or participation of a low level supervisor, like Goodwin, establish a custom or policy of discrimination. Rather, in the context of § 1983, an official custom or policy may only arise if there is an express policy, a widespread practice that is so permanent and well settled as to constitute a custom or usage, or discrimination caused by a person with final policy making authority. McTigue v. City of Chicago, 60 F.3d 381, 382 (7th Cir.1995). None of these circumstances exist here. Absent evidence of such a custom or policy, the City of Belleville is entitled to summary judgment on the Does’ equal protection claim.

II.

Because I agree with the court that in certain circumstances same-sex harassment is actionable under Title VII, it is necessary to draw a bright line to underscore why I disagree with the court’s conclusion that the Does, especially H., have a valid claim. The court concludes that the Does have presented sufficient evidence to reach a jury on both their Title VII and equal protection claims. In reaching these conclusions, the court sees no difference between cases involving same- or opposite-sex harassment. In the court’s opinion, the same inferences arise. But this conclusion must be considered in light of the court’s view that motive should be irrelevant and that, in effect, “sexuality harassment”— harassment somehow sexual in nature — is prohibited by Title VII. See ante at 580 (“H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality .... ”); ante at 593 (“whether his harassers were motivated by his sex, by his purported sexual orientation, or by some other factor, it would seem that he has been harassed sexually and his gender necessarily implicated.”).

I contrast “sexuality” with the statutory language “because of such individual’s ... sex.” My colleagues use seventy-plus pages to tiptoe away from the plain language of the statute in order to greatly expand the horizon on which a litigant can identify sexual harassment by coworkers or supervisors of the same sex. Incredibly, as this court now sees it, sexual harassment need not constitute discrimination “because of such individual’s sex,” i.e. because the victim is a man and not a woman, or visa versa, Ulane, 742 F.2d at 1085, in order to be actionable under Title VII. Rather, if raunchy sexual banter is directed at an employee by coworkers of the same sex because they do not like him, do not respect him, want to tease him, want to embarrass him, or simply want to “initiate” him into a rather disgusting workplace, under the court’s new standard employees targeted by such mean-spirited teasing could have a claim merely by the sexual nature of the teasing. Perhaps judges think an expansion is necessary because Congress has not sufficiently asserted itself in cleaning up such workplaces. But that is not the court’s role. We must apply the law as Congress enacted it rather than to amend it to “correct” workplace situations the court does not like. See Baskerville v. Culligan Intern. Co., 50 F.3d 428, 430 (7th Cir.1995) (Title VII “is not designed to purge the workplace of vulgarity.”).

*603The court at least repeats the well-established principle that a Title VII claim requires that the discrimination (or here harassment) be “because of such individual’s sex.” Ante at 569 (“[g]iven that sexual harassment is actionable under Title VII as a form of sex discrimination, courts typically speak of the threshold question presented by a sexual harassment claim as being whether the plaintiff was harassed ‘because of her sex”). Yet, the undercurrent of the court’s entire opinion is that sexuality harassment is prohibited by Title VII. See ante at 576 (“It is not clear why such proof is needed when the harassment has explicit sexual overtones, however.”); ante at 577 (questioning “whether it is appropriate to view sexual harassment as actionable sex discrimination only when the plaintiff is able to show that she was harassed because she was a woman rather than a man, or vice versa.”); ante at 576 (citing EEOC’s guidelines and stating that the guidelines do not “focus on whether the harasser singled out the victim on the basis of her gender”). Let there be no mistake that what my colleagues actually question is whether Congress should have passed a broader law — one that prohibits all harassment in the workplace that has sexual overtones or language. But the Title VII that Congress passed prohibits harassment only if it is “because of such individual’s sex,” (or race, color, religion, or national origin) and only then if it is severe and pervasive enough to alter the terms and conditions of employment.2

Throughout the opinion the court shifts the focus from the statutory language (“because of such individual’s ... sex”) to what generally can be called “sexuality.” It does so almost immediately, when, after setting forth the requirement that to be actionable, sexual harassment must be “because of such individual’s sex,” see supra at 569, the court quickly rephrases the question as whether the “harassment ... is in some way linked to the plaintiffs sex,” ante at 570, or whether there is “a nexus between the harassment and the plaintiffs gender....” Ante at 570. See also ante at 576 (questioning whether there is “the nexus to the plaintiffs gender that Title VII requires.”) With the question restated, the court begins to question why proof of discriminatory intent is “needed when the harassment has explicit sexual overtones____” Ante at 576. Here the court examines the content of the harassment held actionable in other Title VII cases brought by women for harassment by men, implying (in some places even stating) that it is the “sexual overtones,” ante at 576, or the “sexual nature,” ante at 570, or the “sexual content.” ante at 575, or the “sexual character,” ante at 575, of the harassment that makes it illegal. By concentrating on the sexual content of the harassment, the court has shifted the focus from the individual’s sex (male or female) to sexuality: “H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality.... ” Ante at 580. With the much broader focus on sexuality, it seems entirely natural that the court questions “whether it makes a whit of difference why he was singled out for abuse; whether his harassers were motivated by his sex, by his purported sexual orientation, or some other factor, it would seem that he has been harassed sexually and his gender necessarily implied.” Ante at 593. After all, “[f]rom [the victim’s] point of view, and from the perspective of any reasonable person, the harasser’s motives are immaterial.” Ante at 579.

*604This is startling because the harasser’s motives are not immaterial. They are dis-positive. Title VII prohibits discrimination “because of such individual’s sex.” This means that the “victim” suffers harassment because he is a man and not a woman, or because she is a woman and not a man. That was our holding in Ulane, 742 F.2d at 1085, and nothing has altered our interpretation of the word “sex” since then. Title VII does not prohibit discrimination on the basis of “sexuality,” “sexual orientation,” “something linked to sex,” or anything else — only discrimination (or more specifically here, harassment) because the victim is a man, or because the victim is a woman.

Without deciding the issue, the court indicates that no proof beyond the content of the harassment is necessary to satisfy the “because of such individual’s sex” element. See ante at 576 (“It is not clear why such proof is needed when the harassment has explicit sexual overtones, however.”) Just because the harassment is overtly sexual, however, does not mean that it was motivated by the victim’s sex. Again, this is the difference between “sex,” as used in the statute to mean a biological fact, and “sexuality,” as used by the court to mean sexual overtones, sexual content, sexual character, and so on. In some cases, the words used by a harasser degrade one sex and reveal an obvious discriminatory intent. But for the most part those words are relevant only because they determine whether the harassment is objectively and subjectively abusive enough to fall within the purview of Title VII. The words generally do not answer the crucial threshold question: what motivated the abuse?

In implying the contrary, the court seemingly reasons that because courts in opposite-sex eases have easily found harassment actionable under Title VII where the harassment is explicitly sexual, the mere sexual nature of the harassment by someone of the same sex is sufficient to establish that the harassment was because of the individual’s sex. We must emphasize the distinction between comments explicitly sexual, and comments derogatory or focused on one sex. Most of the decisions the court relies upon concern the latter. Ante at 577, nn. 10-11. And therefore those opposite-sex decisions do not support the proposition that the sexual nature of comments creates the inference of sex discrimination. Additionally, these decisions involve the typical situation of a male harassing a female. In these cases the courts were not asked to consider whether the harassment was “because of such individual’s sex” because in the typical case the discriminatory nature of the conduct is readily apparent: a woman has been targeted with offensive behavior by a man or men, but no men were targeted, Courts deal with the facts and arguments presented, so the fact that the courts have never questioned whether male-on-female harassment of an explicit sexual nature was “because of such individual’s sex” does not mean that we need not look for such proof. Such evidence would be lacking, even if the harassment were explicitly sexual in nature, if the facts of the ease demonstrated that the harassment of a worker was motivated not because of the individual’s sex, but for some other reason (for example, animus). Such a case would be appropriate for summary judgment.

The court compares sexual harassment to racial harassment (ante at 579-580). But my colleagues misconstrue their own analogy. As the court points out, when a black person is subjected to racial slurs and talk of lynching by white coworkers, “we typically do not ask, ‘But was he singled out because of his race?’ ” Of course not. White workers making such statements to a black coworker automatically ignite an inference of racial harassment. But what if the workers involved are all black? If black workers use racial slurs to demean a black coworker, undoubtedly the remarks hurt and are derogatory. But are the racial slurs directed by several black men against another because the victim is black? The reasonable inference is “no.” If several blacks hurl racial slurs at another, it is not likely because the target is black. Instead, they probably want to hurt, malign, challenge, or criticize him for some other reason' — he was anti-union; he supported the wrong political candidate; he was working too slow, holding up the others — or any reason. Importantly, the reason counts. Without some showing that it was *605because of his race, racial discrimination cannot be reasonably inferred where the workers were all black.

Nor is same-sex harassment likely sex discrimination. As the court points out, workplace discrimination can be diffused when a supervisor simultaneously harasses subordinates of different racial and ethnic backgrounds choosing an epithet or symbol that will be uniquely hurtful to particular subordinate. Ante at 579-580. That assumes, of course, the supervisor does not share the background that he is derogating. But there are only two sexes. The harasser and the victim must be one or the other. When a male worker is making paltry sexual remarks to or about a male coworker, the automatic response is not that he is saying these things because the target of the offensive talk is male. For a Title VII sexual harassment claim to exist, the target must show more, such as in Yeary and Fredette where a homosexual man was harassing another man because he was a man' — a man the harasser found sexually attractive. Otherwise the inference is that the male harasser uses the sexual gutter-talk to mock, hxrrt, criticize, intimidate, or otherwise denigrate the other male because of some animosity, jealously, antipathy, or even hate. Without more it is unreasonable to infer that the harassment was meted out because he is a male.

My colleagues underscore our divergent views on this subject. “If [Doe] were a woman, there would be no agonizing over whether the harassment the plaintiffs have described could be understood as sex discrimination.” Ante at 575. I could not agree more. If Dawe and the eoworkers treated a woman coworker this way the immediate inference would be sexual harassment because of her sex. But the court goes on to say “[t]he happenstance that he is instead male should not make for an entirely different analysis, particularly for purposes of a statute that forbids sex discrimination.” Id. Wrong. A different analysis is entirely in order. Suppose Dawe and the offending coworkers this hypothetical woman encountered at the graveyard were also all women? The immediate and only reasonable inference is that they are harassing her for a reason other than the fact that she was a woman. Substitute a man in place of the woman victim in all of the opposite-sex cases cited by the court, and we come up with the same inevitable result — the harassment is not because of the victim’s sex.

So what kind of evidence is relevant and necessary in a hostile work environment case? The same type of evidence used in any sex discrimination case — evidence establishing the discriminatory nature of the conduct. In the usual case, where a male harasses a female, this is not difficult; a woman is typically targeted by a man or men with offensive behavior and no men are targeted. We ask the same question in a same-sex harassment ease: what motivated the harassment? The same proof may exist. The harasser may target only one sex, albeit the same sex. If severe and pervasive that harassment would be illegal. McKinney v. Dole, 765 F.2d 1129, 1138 (D.C.Cir.1985) (“[A]ny harassment or other unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VIL”). See also Spain v. Gallegos, 26 F.3d 439, 447, 449 (3d Cir.1994); cf. Vore v. Indiana Bell Tel. Co., 32 F.3d 1161, 1164 (7th Cir.1994). For instance, in Yeary the court specifically relied on the fact that the male harasser targeted men, but not women, in holding that same-sex harassment was actionable under Title VII. Likewise in Fredette, the Eleventh Circuit relied on evidence proffered by Fredette “that he was the victim of sexual advances to which members of the opposite gender were not subjected ” 112 F.3d at 1505.

Proof of discrimination against the Does because of their sex is made more difficult because the harassment occurred in a single-sex workplace Perhaps it is because there is no gender comparison that this court resorts to the sexual nature of the harassment as proof that the harassment was “because of’ the victim’s sex. That is no excuse for abandoning the statute. The difficulty of proving discrimination because of the person’s sex stems from the reality that when a man *606harasses another man it is very unlikely that he is doing so because the victim is a man. McWilliams and Hopkins recognized this. See supra at 601. In other words, it is difficult to prove discrimination because there was no discrimination.

The court also rejects the position suggested in McWilliams, Hopkins, and Wrightson that same-sex harassment is actionable only if the harasser is a homosexual. As in Yeary and Fredette, this would be the most likely scenario for same-sex sexual harassment. But I agree that requiring such a fact to be alleged and proven as part of the prima facie ease of sex discrimination would violate the direction in O’Connor v. Consolidated Coin Caterers Corporation, - U.S. -, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), that there be a logical connection between the prima facie case and the prohibited discriminatory criteria. I understand the reason some courts have added proof of homosexuality as an element of a sex discrimination case. As the Supreme Court recognized in O’Connor, “some courts have been induced to [add an element to the prima facie case] to avoid creating a prima facie case on the basis of very thin evidence.....” In O’Connor, the Supreme Court noted that lower courts had added as an element to the prima facie case of age discrimination proof that the plaintiff was replaced by someone outside the protected class (there under 40). The Supreme Court rejected this prima facie element as not logically related to the question of whether the plaintiff had “lost out because of his age.” In doing so, however the Court recognized that without such an element, it would “theoretically permit a case with very thin evidence to proceed (for instance a case where a 40-year-old was replaced by a 39-year-old).” The Court, however, also recognized “the proper solution to the problem lies not in making an utterly irrelevant factor an element of the prima facie case, but rather in recognizing that the prima facie case requires evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory criterion.... ” O’Connor, — U.S. at -, 116 S.Ct. at 1310. For instance, “[i]n an age-discrimination context, such an inference can not be drawn from the replacement of one worker with another worker insignificantly younger.” Id. “The discrimination prohibited by the ADEA is discrimination ‘because of [an] individual’s ageId. (quoting 29 U.S.C. sec. 623(a)(1)).

Similarly, as in an ADEA case, here the solution is not to require a new prima facie element — proof that the harasser is a homosexual — but rather to recognize that the evidence as a whole must create an inference that the harassment was “because of such individual’s sex.” When a man harasses a man or a woman harasses a woman, it is not reasonable to infer that the harassment was “because of such individual’s sex,” absent probative evidence that the victim’s sex was, in fact, the motivation. That is what McWilliams meant in stating: “[W]e do not believe that in common understanding the kind of shameful heterosexual-male-on-heterosexual-male conduct alleged here (nor comparable female-on-female conduct) is considered to be ‘because of the [victim’s] ‘sex.’ ” 72 F.3d at 1195-96. And that is the presumption of which Judge Niemeyer spoke in Hopkins. 77 F.3d at 752. As noted earlier, it is not a presumption in the burden-shifting sense, but rather it is the recognition that what is a reasonable inference in opposite-sex cases is not reasonable in same-sex eases.

In this court’s view it does not seem to matter if it is same sex or opposite sex; the same inferences arise. But this is only after the court has shifted the issue from the victim’s sex in particular to sexuality in general. Once that is done the court disposes of motive as the dispositive question. See ante at 580 (“H. Doe apparently was singled out for this abuse because of the way in which he projected the sexual aspect of his personality... .”). If the focus of the statute were sexuality and not the victim’s sex, perhaps the same inferences could arise in same-sex harassment cases. But given the appropriate focus is the harasser’s motive and the individual’s sex, I cannot agree with the court’s conclusion.3

*607The court also refers to the earring H. wore as evidence of sex stereotyping and thus sex discrimination. While sex stereotyping may constitute evidence of sex discrimination, it is not illegal in itself. Price Waterhouse v. Hopkins, 490 U.S. 228, 251, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (“Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.”) (emphasis added). Additionally, any stereotypical statement must be viewed in light of all of the harassment, and as a whole the evidence must create the inference that the harassment was because of the plaintiff’s sex. In Price Waterhouse, where the decision makers were all male, the Supreme Court in separate opinions concluded that the sex stereotyping created a sufficient inference of discrimination to warrant a trial. Yet, as the Supreme Court recognized in O’Connor in the age discrimination context, the inferences to be drawn will differ with the facts of each case, and sometimes will support a conclusion of discrimination, and other times cannot. And it does not create an inference that Dawe harassed H. because he was male; at most, it creates the possible inference that Dawe harassed H. because Dawe thought he was a homosexual, or more likely because Dawe did not like the earring and used it as a reason to ridicule H. as a means of entertainment for the other low-lifes on the graveyard crew. But we do not need to speculate. Even if Dawe really thought H. were a homosexual, that is not enough. Thus, the City of Belleville is entitled to summary judgment on H. Doe’s Title VII claim of sex discrimination.

III.

Accepting Meritor s recognition of sexual harassment claims as a form of sex discrimination, we have no choice but to recognize same-sex harassment claims under Title VII. Claims of sex discrimination (and, in turn, sexual harassment) against men by women, or even women by men, may be closer to the purpose of Title VII, but I see no basis for such a limitation in the language of the statute or elsewhere. Rather the limitation under the statute is the facts — how was the harasser’s conduct motivated by the victim’s sex. The language of the statute is not meaningless; unless the behavior at issue is motivated (at least in part) by the victim’s sex, no cause of action can lie. It will be a truly rare case of same-sex harassment where this burden is satisfied. When a man harasses a man, or a woman harasses a woman, an inference does not arise that the harassment was because of the victim’s sex. My colleagues assure us that the sky has not fallen, suggesting I suppose that federal courts will not be swamped by men or women claiming harassment by coworkers of the same sex, Perhaps not, but that never was the concern.4 The concern always will be the standards by which we define a cause of action not specifically described in a statute, and our proper reluctance to extend such claims further and further away from their statutory moorings.

. In response to a request from the Supreme Court, the Justice Department submitted a brief analyzing whether the Court should hear Oncale v. Sundowner Offshore Services Incorporated, 95 F.3d 56 (5th Cir.1996), a case involving same-sex harassment. Although the DOJ was skeptical whether this case was sufficiently developed factually and legally, it did conclude that some degree of same-sex discrimination was actionable under Title VII. The Court has since granted certiorari on the case to be heard in the next term. — U.S. -, 117 S.Ct. 2430, 138 L.Ed.2d 192 (1997). The Fifth Circuit's holding is that no cause of action exists under Title VII for same-sex discrimination. Of course neither my colleagues nor I take that position here. (While that strict position is arguably the intent of Congress, the plain meaning of the statute will *598not support it.) Therefore, the Court will soon decide the degree to which same-sex discrimination is actionable No doubt this and other circuit court cases that have been published since Oncale will supplement the Tactual and legal analysis that the DOJ concluded Oncale lacked.

. The court also clouds the issue by focusing on the "severe and pervasive" requirement. For example, the court states that "[dears that if such a requirement is not imposed, commonplace 'horseplay' will give rise to sexual harassment claims are, we believe, unfounded. Sexual harassment law already provides the means for distinguishing between isolated instances of non-severe harassment and the truly hostile working environment.” Ante at 575. That may well be true — although "drawing the line is not always easy,” Baskerville, 50 F.3d at 430 — but that is not the issue. The issue is how do we distinguish same-sex sexual harassment meted out because of the victim's sex from horseplay, or even a truly hostile working environment, created for some reason other than the victim's sex. Sexual harassment law, as the court presents it, does not provide a means for distinguishing between same-sex sexual harassment which is because of the victim’s sex, and that which is not; no matter how severe or pervasive the harassment, only the former is actionable.

. I also cannot reconcile the court's conclusion with our holding in Ulane. Ulane made clear that sex was not synonymous with "sexual identity,” or "sexual preference.” However, under the *607court’s analysis both “sexual identity" and “sexual preference” would be related to and have a nexus with an "individual’s sex,” and thus harassment based on either would be actionable. This "sexuality” approach to Title VII cannot be harmonized with Ulane.

. However, Chicken Little seems to be gaining credibility. See Walter K. Olson, The Excuse Factory: How Employment Law Is Paralyzng The American Workplace (1997).