Lead Opinion
In their Title VII suit filed in federal court, Steven and Karen Holman alleged that their supervisor at the Indiana Department of Transportation had sexually harassed each of them individually and on separate occasions, and because they had rejected his sexual solicitations the supervisor retaliated against each of them with
I. Background
Steven and Karen Holman are married and both work in the maintenance department at the Indiana Department of Transportation (IDOT). On May 21, 1997, they filed this action against the State of Indiana and the IDOT under Title VII of the Civil Rights Act of 1964 (as amended), 42 U.S.C. § 2000e et seq., and the Equal Pay Act (EPA), 29 U.S.C. § 206(d).
The IDOT moved to dismiss the Holmans’ Title VII sexual harassment claims under Fed.R.Civ.P. 12(b)(6). On September 8, 1997, the district court granted the motion, holding that “because both plaintiffs were alleging sexual harassment by the same supervisor, they both, as a matter of law, could not prove that the harassment occurred ‘because of sex.’ ” Holman,
II. Discussion
We review de novo a dismissal of a claim under Rule 12(b)(6), accepting as true all facts alleged in the complaint and drawing all reasonable inferences from them in the plaintiffs favor. Ledford v. Sullivan,
A. Title VIPs Requirement of Discrimination and the “Equal Opportunity Harasser”
Title VII of the Civil Rights Act of 1964, as amended, prohibits discrimination on the basis of sex: “It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual or to otherwise 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)(l). The purpose of this provision is to prevent “ ‘disparate treatment of men and women in employment,’ ” regardless of its form. Oncale,
In Oncale,,the Supreme Court reiterated that “Title VII’s prohibition of discrimination ‘because of ... sex’ protects men as well as women,” id, and it held that this prohibition applies to the same-sex harasser, whether or not that harasser is motivated by sexual desire. See id. at 79-80,
The Court explicated what it meant by “discrimination” in sexual harassment cases; it is to be determined on a gender-comparative basis: “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.” Id. at 80,
Both before and after Oncale, we have noted that because Title VII is premised on eliminating discrimination, inappropriate conduct that is inflicted on both sexes, or is inflicted regardless of sex, is outside the statute’s ambit. Title VII does not cover the “equal opportunity” or “bisexual” harasser, then, because such a person is not discriminating on the basis of sex. He is not treating one sex better (or worse) than the other; he is treating both sexes the same (albeit badly). See Pasqua v. Metropolitan Life Ins. Co.,
The Holmans do not really address On-cale ’s emphasis on the statutory requirement of discrimination. And amicus EEOC candidly admits that under Pasqua and Shepherd, this circuit does not recognize Title VII sexual harassment claims in the case of the “equal opportunity” harasser. Instead, both say that exempting the “equal opportunity” harasser from Title VII would be an anomalous result and bad policy (it would, they argue, encourage harassers to manufacture a second harassment of a different sex so they could insulate themselves from Title VII liability). They cite pre-O^caie decisions, including one vacated by the Supreme Court, Doe by
We do not think, however, that it is anomalous for a Title VII remedy to be precluded when both sexes are treated badly. Title VII is predicated on discrimination. Given this premise, requiring disparate treatment is consistent with the statute’s purpose of preventing such treatment. Oncale,
But that risk ... is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at “discri-minat[ionJ ... because of ... sex.” ... “The critical issue, Title VII’s text indicates, is whether members of one sex are exposed tó disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”
Furthermore, the Holmans’ theory that sexual harassers will attempt to insulate themselves and their employers from liability by purposely harassing members of both sexes in order to disguise their real intent seems unrealistic. It is hard to imagine that would-be harassers will know the intricacies of sexual harassment law and will manufacture additional harass-ments to attempt to avoid Title VII liability, particularly when doing so will increase their risk of being fired, sued under state law, and ostracized. Surely attorneys will not advise their employer-clients to instruct their employees to harass still more people — to commit, in most cases, state law torts — -which could subject their clients to lawsuits and themselves to claims of malpractice and charges of professional misconduct. Moreover, if attorneys were actually to dispense such incredible advice, and their clients were to follow it, the clients would still be subject to Title VII liability. In such cases the harasser is not a bona-fide “equal opportunity” harasser; he is manufacturing another harassment to avoid Title VII liability.
B. The Holmans’ Sexual Harassment Claims
The district court dismissed the Holmans’ sexual harassment claims, concluding that the Holmans could not claim discrimination because they had alleged that their supervisor had been sexually harassing both of them by soliciting sex from each of them. Thus, applying On-cale, the district court reasoned that “neither was subjected to disadvantageous terms or conditions of employment to which members of the other sex were not exposed.” Holman,
The Holmans seem to assert that even if Title VII does not cover the “equal opportunity” harasser, the district court erred in dismissing their sexual harassment claims because it is possible, under some set of facts, for at least one of them to maintain a claim for sexual harassment. They do not explain, however, how one of them could do so under the present allegations that Uhrich had been sexually harassing both of them by sexually propositioning each of them, and thus was not discriminating against either of them. We accept the complaint at its face value and will not speculate over how it could have some other meaning. See Liu v. T&H Machine, Inc.,
The Holmans contend that under Rule 12(b)(6), their sexual harassment claims cannot be dismissed unless it is impossible to establish a claim under any set of facts. But the Holmans only have it half right. While their claims may not be dismissed under Rule 12(b)(6) unless they cannot prove a claim under any set of facts, those facts must be consistent with the allegations of the complaint. Hishon,
Similarly, every new scenario amicus EEOC proposes contradicts the Holmans’ allegations and assumes that Uhrich did not really sexually harass either Steven or Karen. For example, the EEOC argues that the facts could show that Uhrich harassed Karen out of spite because he was jealous of her relationship with her husband (with whom Uhrich really wanted to have sexual relations) and thus was not really an “equal opportunity” harasser. But speculating that Uhrich propositioned and accosted Karen Holman because she was married or loyal to her husband, is inconsistent with the complaint, which alleges that Uhrich “sexually harassed” her “in violation of Title VII,” which, by definition, simply means that he harassed her because she was a woman. See 42 U.S.C. § 2000e-2(a)(l); see also Sweeney v. West,
Additional discovery, then, would not save the Holmans’ sexual harassment claims. Their problem is that the allegations in their complaint are very precise; the complaint simply and clearly says that their supervisor was sexually harassing each of them by asking for sexual favors. As a matter of law, then, neither of them has a claim for discrimination under Title VII. Northern Trust Co. v. Peters,
Recognizing the difficulty in which their complaint has placed them, the Holmans hopefully contend that they have pleaded in the alternative — that they really have alleged that Uhrich harassed either Karen or Steven, but not both of them. See Fed.R.Civ.P. 8(e)(2). It should be noted that this argument is at odds with what they told us earlier in oral argument
III. Conclusion
For the foregoing reasons, the order of the district court dismissing the plaintiffs’ sexual harassment claims is
Affirmed.
Notes
. Although not raised by the parties, we assume the IDOT, and not the State of Indiana generally, has "actual hiring and firing responsibility” as to the Holmans and is thus their "employer” for purposes of Title VII. Hearne v. Board of Educ. of City of Chicago,
. The Eleventh Amendment does not bar the Holmans’ Title VII claims. See Fitzpatrick v. Bitzer,
. The other "requirement that prevents Title VII from expanding into a general civility code” is interpreting the statute not to "reach genuine but innocuous differences in the ways men and women routinely interact ... [I]t forbids only behavior so objectively offensive as to alter the 'conditions' of the victim’s employment.” Id. at 81,
. In this case, as we shall see, the Holmans are precluded from making such an argument because they have alleged that Gale Uhrich sexually harassed each of them.
. The closest the Holmans come is asserting in their reply brief that had they "been permitted to do discovery, it may be unearthed that one Appellant may have been the victim of sexual harassment while the other is a victim of retaliation." This argument was not properly presented. United States v. Turner,
. This case is thus different from Shepherd, where the plaintiff did not plead that the supervisor had been sexually harassing both a man and a woman.
. The EEOC also argues that the Holmans’ sexual harassment claims should not be dismissed because the evidence could show that Uhrich sexually harassed them in ways unique to their sex (evidently, meaning in terms of their different body parts). Given the (obvious) differences in male and female anatomy, that Uhrich would do so hardly seems remarkable. More to the point, under this theory either Uhrich sexually harassed both the Holmans (as they alleged), in which case he would not be discriminating against either of them (and we would be back to where we started), or he did not sexually harass one of them, which would be a scenario inconsistent with the complaint.
. "Mr. and Mrs. Holman worked for the Stale of Indiana. They were sexually harassed by the same supervisor. They filed a complaint in court by which each of them alleged sexual harassment by the same supervisor.”
. "At this stage, Plaintiffs have alleged in their complaint that Mr. Uhrich’s intended targets were both Steven and Karen Holman.” Initial Brief at 14 (emphasis added); see also id. (emphasis in original) ("Both Steven and Karen Holman should be able to pursue their respective harassment claims because they were both harassed ‘because of their gender.”).
Concurrence Opinion
concurring.
As Judge Manion correctly points out, our cases indicate that the equal opportunity harasser may often not be discriminating against either sex and, as we know, discrimination is the essence of Title VII. We also have indicated that it might be possible for a plaintiff to show an exception: that the equal opportunity harasser engaged in such sex specific and derogatory behavior as to reveal an “antipathy to persons of the plaintiffs gender,” thus al-. lowing for the possibility that a plaintiff could prove that an equal opportunity harasser was not harassing so equally after all and was, in fact, discriminating against one sex or the other. See Shepherd v. Slater Steels Corp.,
