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Copyright (c) 2002 Vanderbilt Univeristy
Vanderbilt Law Review

NOTES: How the "Equal Opportunity" Sexual Harasser Discriminates on the Basis of Gender Under Title VII

May, 2002

New York University Law Review

55 Vand. L. Rev. 1205


Kyle F. Mothershead *


I. Introduction
Americans commonly know that federal law prohibits workplace sexual harassment. Many might be surprised to find, however, that generally courts have not found liability in the case of the so-called "equal opportunity" harasser. 1 A simple hypothetical will explain the nature of this peculiar species of harasser. Suppose Ken and Carol are both employed at Happyfun, Inc. as manufacturers of reindeer Christmas ornaments under the direction of their supervisor, Fred. Fred corners each of them daily and asks, "How about some sex today?" No doubt he is sexually harassing both Ken and Carol. If they sue for relief, however, a judge would very likely tell them that because Fred harasses both a man and a woman there is no sex "discrimination" and, therefore, Title VII does not provide a remedy for their grievances.

In 2000, the Seventh Circuit squarely addressed and upheld this doctrine in Holman v. Indiana, 2 a case that has received considerable attention in academic literature and case reviews for its stark denial of relief to victims of equal opportunity harassment. 3 The responses to Holman are divergent, and those who oppose the result have taken a variety of tacks in arguing against the court's decision. The larger issue Holman raises has a much longer history than the case itself, and has been a matter of academic debate since the 1970s. 4

Surely, most judges would not particularly want to deny relief to victims of equal opportunity harassment. ...
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