Fredette v. BVP Management Associates

Decision Date22 May 1997
Docket NumberNo. 95-3242,95-3242
Citation1997 WL 228588,112 F.3d 1503
Parties73 Fair Empl.Prac.Cas. (BNA) 1519, 71 Empl. Prac. Dec. P 44,811, 65 USLW 2791, 10 Fla. L. Weekly Fed. C 964 Robert FREDETTE, Plaintiff-Appellant, v. BVP MANAGEMENT ASSOCIATES, Royal Palace Hotel Associates; Buena Vista Hospitality Group, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Tobe M. Lev, Egan, Lev & Siwica, Orlando, FL, for Plaintiff-Appellant.

Paul Bogas, EEOC, Office of General Counsel, Washington, DC, for amicus EEOC.

Arch Y. Stokes, John R. Hunt, Stokes & Murphy, Atlanta, GA, Susan K. McKenna, Garwood, McKenna & McKenna, Orlando, FL, Alan M. Gerlach, Jr., Broad & Cassel, Orlando, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

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 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 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 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...

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