Fredette v. BVP Management Associates

United States Court of Appeals,

Eleventh Circuit.

No. 95-3242.

Robert FREDETTE, Plaintiff-Appellant,

v.

BVP MANAGEMENT ASSOCIATES, Royal Palace Hotel Associates; Buena
Vista Hospitality Group, Defendants-Appellees.

May 22, 1997.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-325-CIV-ORL-18), G. Kendall Sharp,
Judge.

Before ANDERSON, Circuit Judge, and KRAVITCH and HENDERSON, Senior
Circuit Judges.

ANDERSON, Circuit Judge:

Appellant Robert Fredette brought this action against BVP

Management Associates ("BVP"), alleging that Dana Sunshine, the

male maitre d' or manager of BVP's restaurant, sexually harassed

him in violation of Title VII of the Civil Rights Act of 1964, as

amended, 42 U.S.C. § 2000e, et seq., and in violation of the

Florida Human Rights Act of 1977, as amended, Fla.Stat. ch. 760 et

seq.1 BVP sought summary judgment, which the magistrate judge

recommended be denied. The district court rejected the

recommendation of the magistrate judge and granted summary judgment

in favor of BVP, concluding that Fredette had not created an issue

of fact regarding the causal element of his sexual harassment

claim—i.e., that the harassment occurred "because of sex." On

1
Fredette originally sued other defendants as well as BVP,
but as the case comes to us on appeal the only remaining
defendant is BVP. Similarly, plaintiff originally also made a
claim under the Fair Labor Standards Act, but that claim was
settled and is no longer part of the case.
appeal, appellee BVP argues that we should affirm the summary

judgment because same-sex harassment claims are wholly outside the

purview of Title VII. Because we disagree with both the district

court and the appellee, we reverse.

I. BACKGROUND

In the summary judgment posture of this case, the magistrate

judge properly accepted Fredette's proffered evidence as true and

resolved all reasonable inferences of fact in his favor. The

district court, noting that BVP did not object to the magistrate

judge's statement of the facts, accepted the facts as set out by

the magistrate judge. For purposes of this appeal, we may

abbreviate the statement of the facts, providing only enough to

make it apparent that this appeal involves both quid pro quo sexual

harassment and hostile environment sexual harassment arising from

repeated instances of propositions for sexual favors. Fredette was

a waiter in BVP's restaurant, and Mr. Sunshine, who is homosexual,

was the maitre d' or manager. Fredette proffered evidence from

which a factfinder could conclude that Fredette's supervisor, Mr.

Sunshine, repeatedly propositioned him, offering employment

benefits in exchange for Fredette's providing sexual favors to Mr.

Sunshine, and when Fredette refused to comply and later reported

the matter to management that Mr. Sunshine retaliated against

Fredette in various work-related ways. There was similar evidence

with respect to other male victims, and there was evidence that Mr.

Sunshine provided work-related benefits to another male waiter who
did accede to Mr. Sunshine's propositions.2

II. ISSUE

The single issue presented in this appeal is whether, under

the circumstances of this case, the sexual harassment of a male

employee by a homosexual male supervisor is actionable under Title

VII.3

III. DISCUSSION

We begin with the language of the statute. Title VII of the

Civil Rights Act of 1964 reads in relevant part:

It shall be 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). We note first that the statute

prohibits an "employer," whether male or female, from

discriminating against "any individual," whether male or female.

There is simply no suggestion in these statutory terms that the

cause of action is limited to opposite gender contexts. Next we

focus on the statute's causation requirement—i.e., that the

discrimination occurs "because of such individual's ... sex." In

2
Although BVP does not set out a factual issue in its brief,
it does attempt to belittle Fredette's proffered evidence
amounting to quid pro quo harassment, arguing that the evidence
made clear that Mr. Sunshine's propositions for sexual favors and
his real or threatened retaliation were either "ludicrous" or
mere "braggadocio." Suffice it to say that our review of the
record readily persuades us that the magistrate judge did not err
in concluding that there were genuine issues of fact in this
regard. Thus, in the instant summary judgment posture, we must
assume that the case involves quid pro quo harassment.
3
The briefs on appeal assume that the Florida law claim will
track the Title VII claim with respect to this issue. We accept
the parties' assumptions, and accordingly our holding applies
also to Fredette's claim under the Florida Human Rights Act.
the paradigm harassment case, where a heterosexual male makes

unwelcome advances toward a female, we have readily concluded that

the harassment occurred "because of sex." In Henson v. City of

Dundee, 682 F.2d 897 (11th Cir.1982), we said:

In the typical case in which a male supervisor makes sexual
overtones to a female worker, it is obvious that the
supervisor did not treat male employees in a similar fashion.
It will therefore be a simple matter for the plaintiff to
prove that but for her sex, she would not have been subjected
to sexual harassment.

Id. at 904. We think our observation in Henson is equally

applicable to the situation where a homosexual male propositions

another male. The 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. Fredette proffered

evidence from which a reasonable factfinder could conclude that he

was the victim of sexual advances to which members of the opposite

gender were not subjected. This was sufficient to survive summary

judgment as to causation.

We next look to the legislative history of Title VII.

Appellee has cited nothing, and we find nothing in the legislative

history that suggests an express legislative intent to exclude

same-sex harassment claims from the purview of Title VII. Instead,

BVP argues by inference, suggesting that the legislative focus on

discrimination against women by male-dominated employers indicates

that Congress did not intend to provide a remedy for same-sex

harassment. The obvious Congressional focus on discrimination

against women has not precluded the courts from extending the

protections of Title VII to men. Newport News Shipbuilding & Dry
Dock Co. v. E.E.O.C., 462 U.S. 669, 681-82, 103 S.Ct. 2622, 2630,

77 L.Ed.2d 89 (1983) ("Male as well as female employees are

protected against discrimination [under Title VII]."). Similarly,

we conclude that the legislative history does not preclude our

holding that same-sex harassment, at least in the instant

circumstances, is actionable under Title VII.

The EEOC's interpretation of Title VII provides further

support for appellant's argument that same-sex sexual harassment is

actionable in the instant circumstances.4 The EEOC Compliance

Manual states in relevant part:

The victim does not have to be of the opposite sex from the
harasser. Since sexual harassment is a form of sex
discrimination, 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 employees of the opposite sex
the same way.

EEOC Compliance Manual (CCH) § 615.2(b)(3) (1987) (emphasis in

original). The Compliance Manual in fact uses as an example of

actionable same-sex harassment a case identical to the one before

us today:

Example 1—If a male supervisor of male and female employees
makes unwelcome sexual advances toward a male employee because
the employee is male but does not make similar advances toward
female employees, then the male supervisor's conduct may
constitute sexual harassment since the disparate treatment is

4
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106
S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) ("[EEOC] Guidelines, "
"while not controlling upon the courts by reason of their
authority, do constitute a body of experience and informed
judgment to which courts and litigants may properly resort for
guidance...." ' " (quoting General Electric Co. v. Gilbert, 429
U.S. 125, 141-42, 97 S.Ct. 401, 410, 50 L.Ed.2d 343 (1976))
(quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct.
161, 164, 89 L.Ed. 124 (1944))).
 based on the male employee's sex.

Id.

Looking to the relevant case law, we find that the Supreme

Court has not addressed the issue of same-sex sexual harassment.

The closest analogy in the Supreme Court case law involves reverse

discrimination. In Johnson v. Transportation Agency, Santa Clara

County, 480 U.S. 616, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987), a male

plaintiff brought a Title VII action for sex discrimination based

on the county's decision to promote a female applicant to the

position of road dispatcher. The facts of Johnson clearly show

that the decision alleged to be discriminatory was made by another

man. Id. at 624-26, 107 S.Ct. at 1448. Notwithstanding the fact

that the allegation was one of same-sex discrimination, the Court

addressed the merits of whether or not discrimination in violation

of Title VII had taken place. See also Wilson v. Bailey, 934 F.2d

301 (11th Cir.1991), and McQuillen v. Wisconsin Educ. Ass'n

Council, 830 F.2d 659 (7th Cir.1987), cert. denied, 485 U.S. 914,

108 S.Ct. 1068, 99 L.Ed.2d 248 (1988) (both addressing the sex

discrimination claims of male plaintiffs without assigning any

significance to the fact that the relevant employment decisions

were made by another male). We recognize that the cited opinions

do not squarely address the issue of whether same-sex gender

discrimination is excluded from the compass of Title VII. However,

we think the widespread acknowledgement of the viability of

reverse-discrimination claims (which often involve the same-sex

context) stands as an implicit rejection of BVP's position.

The viability of same-sex harassment claims is also an issue
of first impression in this circuit.5 While there is a split of

authority amongst the circuits, and also amongst the district

courts addressing the issue, we believe that the weight of the case

law and the better-reasoned cases support the viability of the

particular Title VII claim before us today.

In a case much like the instant case, involving a male victim

and repeated sexual advances by a male homosexual, the Sixth

Circuit has found an actionable Title VII claim. See Yeary v.

Goodwill Industries-Knoxville, Inc., 107 F.3d 443 (6th Cir.1997).

To support its holding, the Yeary panel looked initially to the

language of the statute, the rationale for the proscription against

sexual harassment, and to the EEOC's Compliance Manual. In answer

to the defendant's objection that only "traditional" notions of sex

discrimination are actionable under Title VII, the court wrote:

[T]his case is about as traditional as they come, albeit with
a twist. It is about an employee making sexual propositions
to and physically assaulting a coworker because, it appears,
he finds that coworker sexually attractive. This is a
scenario that has been found actionable countless times over,
when the aggressor is a male and the victim is a female.
Likewise, there is no serious question that the same scenario
would be actionable in the less typical case when the
aggressor is a female and the victim is a male. Consequently,
we find no substantive difference between either of those
situations and that present here.

Id. at 447-48. As for Title VII's causation requirement, the court

concluded that "when a male sexually propositions another male

5
See Henson v. City of Dundee, 682 F.2d 897, 905 n. 11 (11th
Cir.1982) (dicta) ("Except in the exceedingly atypical case of a
bisexual supervisor, it should be clear that sexual harassment is
discrimination based upon sex."). See also Joyner v. AAA Cooper
Transp., 597 F.Supp. 537 (M.D.Ala.1983), aff'd, 749 F.2d 732
(11th Cir.1984) (table) (unpublished, nonbinding decision
affirming a district court finding of Title VII liability in a
quid pro quo case involving advances made by a homosexual male
supervisor towards a male employee).
because of sexual attraction, there can be little question that the

behavior is a form of harassment that occurs because the

propositioned male is a male—that is, "because of sex.' " Id. at

448.

Similarly, the Fourth Circuit in Wrightson v. Pizza Hut of

America, Inc., 99 F.3d 138 (4th Cir.1996), held that a male

employee could state a viable Title VII claim for sex

discrimination against his employer on account of sexual harassment

by his homosexual male supervisor. As we do, the Fourth Circuit

relied upon the plain language of the statute, the case law

expounding upon Title VII's causation requirement, and the EEOC's

published interpretation of the statute. We note that the Fourth

Circuit has drawn a distinction between cases involving sexual

harassment of a male subordinate by a homosexual male perpetrator,

i.e., Wrightson, and cases involving a heterosexual male

perpetrator and a male victim. In the latter context, the Fourth

Circuit has found no viable Title VII claim. McWilliams v. Fairfax

County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.), cert. denied,

--- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996). The McWilliams

panel found that the conduct in that case did not constitute

harassment "because of" sex or gender, but rather constituted

harassment because of the victim's perceived prudery, shyness, or

other vulnerability. The distinction the Fourth Circuit has

recognized is easily perceived. We readily understand a homosexual

male's advances towards another male to occur "because of sex"; we

understand this both out of common experience and in recognition of

the parallels between this situation and the paradigm case of
harassment involving a heterosexual male and a female victim, in

which we have determined that the causation element of Title VII is

easily met. Whether the kind of harassment at issue in

McWilliams—i.e., heterosexual males' razzing and hazing of other

males—occurs "because of sex" is a more difficult question, both in

terms of common experience and law. Today, we need not decide that

more difficult question; we need only recognize that the

hesitations underlying the Fourth Circuit's holding in McWilliams

are not implicated by the case before us today.6 See Yeary, 107

F.3d at 448 (deciding the case before the panel without resolving

the question regarding the viability of same-sex harassment claims

not involving homosexual advances).

A number of other circuits have suggested in dicta that

same-sex Title VII claims might be viable at least in some

circumstances. In a 1977 case recognizing a sex discrimination

cause of action for quid pro quo harassment involving a female

employee and a male supervisor, the Court of Appeals for the

District of Columbia suggested that similar claims involving

parties of the same gender would also constitute actionable sex

discrimination. See Barnes v. Costle, 561 F.2d 983, 990 n. 55

(D.C.Cir.1977) ("It is no answer [to the conclusion that the

harassment at bar constituted sex discrimination] to say that a

similar condition could be imposed on a male subordinate by a

heterosexual female superior, or upon a subordinate of either

6
We note that although the precise scope of the decision is
somewhat unclear, the Eighth Circuit's decision in Quick v.
Donaldson Co., Inc., 90 F.3d 1372 (8th Cir.1996), could be
construed to hold that a viable Title VII claim may be stated in
circumstances like those involved in McWilliams.
gender by a homosexual superior of the same gender. In each

instance, the legal problem would be identical to that confronting

us now—the exaction of a condition which, but for his or her sex,

the employee would not have faced.").7 Similarly, the Third

Circuit summarily rejected the argument that advances made toward

a female employee were not sex discrimination because the male

supervisor could also have propositioned male employees: "We would

note that, although irrelevant, the situation posed in PSE & G's

hypothetical would cause no great concern. Title VII prohibits

discrimination against men as well as women." Tomkins v. Public

Serv. Elec. & Gas Co., 568 F.2d 1044, 1047 n. 4 (1977). The

Seventh Circuit has noted, "Sexual 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." Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th

Cir.1995).8 Finally, the Ninth Circuit has left the door open to

same-sex harassment cases, noting in a hostile environment case

brought by a woman, "[W]e do not rule out the possibility that both

men and women working at Showboat have viable claims against

Trenkle [a male supervisor] for sexual harassment." Steiner v.

7
See also Bundy v. Jackson, 641 F.2d 934, 942 n. 7
(D.C.Cir.1981) (revisiting this passage in Barnes and noting that
"in each instance the question is one of but-for causation:
would the complaining employee have suffered the harassment had
he or she been of a different gender?").
8
See also McDonnell v. Cisneros, 84 F.3d 256, 260 (7th
Cir.1996) ("Analysis is complicated by the fact that a difference
in sex is not a necessary condition of sexual activity and hence
(most courts think) of sexual harassment.").
Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir.1994) (emphasis

in original), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130

L.Ed.2d 636 (1995).9

Numerous district courts have concluded that same-sex

harassment claims (both of the hostile environment and quid pro quo

varieties) can be actionable under Title VII.10

9
Several judges in separate opinions have suggested that
same-sex harassment may be actionable. See Saulpaugh v. Monroe
Community Hosp., 4 F.3d 134, 148 (2d Cir.1993) (Van Graafeiland,
J., concurring) ("[H]arassment is harassment regardless of
whether it is caused by a member of the same or opposite sex."),
cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539
(1994). In Hopkins v. Baltimore Gas and Elec. Co., 77 F.3d 745
(4th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 70, 136
L.Ed.2d 30 (1996), Judge Niemeyer addressed the viability of
same-sex harassment claims, concluding that a plaintiff who could
prove that he or she suffered otherwise actionable sexual
harassment because of gender could state a claim regardless of
the sex of the offender. Id. at 752. To Judge Niemeyer, the
"more difficult question" was "what proof is necessary to
demonstrate that harassment is because of the employee's
gender...." Id. He concluded that where the harasser and the
victim are of the same gender, a presumption exists that sexually
suggestive conduct is not based on gender because "such sexually
suggestive conduct [between members of the same gender] is
usually motivated by entirely different reasons [than gender]."
Judge Niemeyer contrasted this presumption to that present in
opposite-sex harassment cases: "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." Id. Judge
Niemeyer concluded that in order to prevail in a Title VII
action, the same-sex harassment plaintiff would have to overcome
a presumption that the harassment was not based on sex. Id. at
753.
10
See, e.g., McCoy v. Macon Water Auth., --- F.Supp. ----
(M.D.Ga. Feb. 5, 1997); Williams v. District of Columbia, 916
F.Supp. 1 (D.D.C.1996); Waag v. Thomas Pontiac, Buick, GMC,
Inc., 930 F.Supp. 393 (D.Minn.1996); Tanner v. Prima Donna
Resorts, Inc., 919 F.Supp. 351 (D.Nev.1996); McCoy v. Johnson
Controls World Servs., Inc., 878 F.Supp. 229 (S.D.Ga.1995);
Prescott v. Indep. Life & Accident Ins. Co., 878 F.Supp. 1545
(M.D.Ala.1995); Raney v. District of Columbia, 892 F.Supp. 283
 Although we believe that the weight of the case law and the

better-reasoned cases support Fredette's claim, there is a split in

the circuits and in the case law. The only circuit court of

appeals adopting a position inconsistent with holding in favor of

Fredette is the Fifth Circuit. Oncale v. Sundowner Offshore

Servs., Inc., 83 F.3d 118 (5th Cir.1996); Garcia v. Elf Atochem

North America, 28 F.3d 446 (5th Cir.1994). The legal principle

which apparently emerges from Oncale and Garcia is that "all

same-sex sexual harassment claims" are barred. Oncale, 83 F.3d at

120. However, it is difficult to accord much persuasive force to

these two decisions. The Garcia holding was the last of several

independent and alternative holdings and was accompanied by no

reasoning whatsoever. Oncale also provided no rationale to support

the holding; rather, it limited its discussion to the reach of the

cryptic Garcia opinion, specifically whether the relevant language

in Garcia was dicta or binding precedent. The Oncale panel,

recognizing the fact that indications in other circuit court

opinions and many district court opinions were to the contrary,

emphasized that it was bound by Garcia. Moreover, it seems from

the statement of the facts in Garcia that the harassing conduct at

issue there was similar in nature to that in McWilliams, i.e.,

(D.D.C.1995); Griffith v. Keystone Steel and Wire, 887 F.Supp.
1133 (C.D.Ill.1995); Sardinia v. Dellwood Foods, Inc., 69 Fair
Empl.Prac.Cas. (BNA) 705, 1995 WL 640502 (S.D.N.Y.1995); King v.
M.R. Brown, Inc., 911 F.Supp. 161 (E.D.Pa.1995); Nogueras v.
Univ. of Puerto Rico, 890 F.Supp. 60 (D.Puerto Rico 1995);
E.E.O.C. v. Walden Book Co., Inc., 885 F.Supp. 1100
(M.D.Tenn.1995); Ecklund v. Fuisz Tech., Ltd., 905 F.Supp. 335
(E.D.Va.1995); Joyner v. AAA Cooper Transp., 597 F.Supp. 537
(M.D.Ala.1983), aff'd, 749 F.2d 732 (11th Cir.1984) (table);
Wright v. Methodist Youth Servs., Inc., 511 F.Supp. 307
(N.D.Ill.1981).
teasing and harassment with sexually-focused speech or conduct, but

not involving a male superior's solicitation of sexual favors from

a male subordinate on condition of work benefits or detriment. In

other words, the Fifth Circuit case law stems from a case that, for

the reasons set out above, presented far more difficult questions

than the one before us today.11

Many cases rejecting same-sex harassment claims rely upon

Goluszek v. H.P. Smith, 697 F.Supp. 1452 (N.D.Ill.1988), this

category possibly including the Fifth Circuit case law.12 While the

facts in Goluszek clearly involve conduct of the kind involved in

McWilliams, the Goluszek court relied upon an expansive rationale.

According to the Goluszek court, a Title VII claim is viable only

in a context where the work environment is dominated by members of

one gender and the workplace environment is hostile to the other

gender, i.e., treats members of the other gender as inferior.

Goluszek stated that Congress was concerned with "an imbalance of

power and an abuse of that imbalance by the powerful which results

in discrimination against a discreet and vulnerable group." Id. at

1456. Some courts have followed the Goluszek decision closely,

concluding that on the facts presented the plaintiff did not show

an anti-male environment and therefore could not state a claim

11
Although it is unclear from the brief statement of the
facts in Oncale whether it might have involved homosexual
solicitation of sexual favors on condition of work benefits or
detriment, the court did not address the potential significance
of that fact as explained in this opinion and in Wrightson.
12
Although Garcia includes no supporting rationale, it does
cite Goluszek.
under Title VII.13 Other decisions have accepted the broader

language of the Fifth Circuit in Garcia, barring all same-sex

harassment claims.14

We readily conclude that the Goluszek rationale is flawed.15

The law is well established that Title VII protects men as well as

women, without regard to whether the workplace is male-dominated.

This is most obvious in cases involving male plaintiffs' challenges

to affirmative action plans enacted to promote the advancement of

women. Because employers typically adopt such plans precisely

because the environment is male-dominated, the paradigm

reverse-discrimination plaintiff is one whose workplace is

dominated by members of his own gender. For example, in Johnson v.

Transportation Agency, Santa Clara County, 480 U.S. 616, 107 S.Ct.

1442, 94 L.Ed.2d 615 (1987), the male plaintiff worked in a county

transportation agency that had the following composition as of the

year before the contested employment decision:

Specifically, 9 of the 10 Para-Professionals and 110 of the

13
See Vandeventer v. Wabash Nat. Corp., 887 F.Supp. 1178
(N.D.Ind.1995); Fleenor v. Hewitt Soap Co., 67 Fair
Empl.Prac.Cas. (BNA) 1625, 1995 WL 386793 (S.D.Ohio 1994), aff'd
on other grounds, 81 F.3d 48 (6th Cir.), cert. denied, --- U.S. -
---, 117 S.Ct. 170, 136 L.Ed.2d 112 (1996).
14
See Schoiber v. Emro Marketing Co., 941 F.Supp. 730
(N.D.Ill.1996); Torres v. National Precision Blanking, 943
F.Supp. 952 (N.D.Ill.1996); Benekritis v. Johnson, 882 F.Supp.
521 (D.S.C.1995); Hopkins v. Baltimore Gas & Elec. Co., 871
F.Supp. 822 (D.Md.1994), aff'd on other grounds, 77 F.3d 745 (4th
Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 70, 136 L.Ed.2d 30
(1996).
15
Of course, we do not mean to suggest that the situation
described as actionable in Goluszek—i.e., harassment in an
environment dominated by the opposite gender—is not actionable;
we mean only to say that we do not agree it is the only situation
that gives rise to a claim under Title VII.
 145 Office and Clerical Workers were women. By contrast,
women were only 2 of the 28 Officials and Administrators, 5 of
the 58 Professionals, 12 of the 124 Technicians, none of the
Skilled Craft Workers [the classification of the position at
issue in the case], and 1 ... of the 110 Road Maintenance
Workers.

Id. at 634, 107 S.Ct. at 1453. However, we find no suggestion

either in Johnson or in the other case law that such plaintiffs

cannot state a viable Title VII claim simply because they work in

an environment dominated by members of their own gender.16

Finally, we address concerns raised by the appellee regarding

the implications of this case for the law regarding discrimination

based on sexual orientation. BVP argues that to hold in favor of

the appellant is, in effect, to protect against discrimination on

the basis of sexual orientation. The short but complete answer to

this argument is to make clear the narrowness of our holding today.

We do not hold that discrimination because of sexual orientation is

actionable. Rather, we hold today that when a homosexual male

supervisor solicits sexual favors from a male subordinate and

conditions work benefits or detriment on receiving such favors, the

male subordinate can state a viable Title VII claim for gender

16
Similarly, we find no suggestion that white plaintiffs
challenging racial affirmative-action programs cannot state
viable Title VII claims simply because their workplace is
dominated by members of their own race. In United Steelworkers
v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the
Supreme Court addressed the merits of a Title VII claim brought
by white plaintiffs challenging a racial affirmative-action plan
for a workplace where blacks held only 2% of the positions at
issue and made up less than 15% of the entire workforce. See
Peightal v. Metropolitan Dade County, 940 F.2d 1394 (11th
Cir.1991) (considering the Title VII claims of a white male
plaintiff regarding an affirmative-action plan adopted to promote
women and racial minorities at a time when 75% of the
firefighters in the department were white and 99% were male),
cert. denied, 502 U.S. 1073, 112 S.Ct. 969, 117 L.Ed.2d 134
(1992).
discrimination. We note that the EEOC has also drawn a distinction

between the conduct at issue here, which is actionable as gender

discrimination, and discrimination because of sexual orientation.

EEOC Compliance Manual (CCH) § 615.2(b)(3) (1987).

IV. CONCLUSION

In summary, we conclude that the plain language of Title VII

provides protection against the conduct at issue here where a

homosexual male superior has solicited sexual favors from a male

subordinate and conditioned work benefits or detriment on receiving

such favors. We find nothing to the contrary in the legislative

history. Our holding is in accord with the interpretation of the

EEOC, and is in accord with the weight of the case law and the

better-reasoned cases.

For the foregoing reasons, the judgment of the district court

is reversed with respect to both the claim of quid pro quo sexual

harassment and the claim for hostile environment sexual harassment.

The case is remanded for further proceedings not inconsistent with

this opinion.

REVERSED and REMANDED.