Author: Shana Khader, JD 2011
Abstract: The “equal opportunity harasser” defense to a sexual harassment claim—allowing for an employer to escape liability under Title VII by showing that members of both sexes were sexually harassed—is problematic on its face. Intuitively, it seems both wrong and right: it appears to be a bizarre loophole that more harassment can be a defense to a sexual harassment claim; and yet, at the same time, it is seems that it must be true that an action cannot constitute sex-based discrimination if it is taken toward both men and women. This paper explores the “equal opportunity harasser” defense in order to pinpoint the source of the tension described above. The paper begins by tracing the origins of the defense in Title VII case law and proceeds by following its evolution including courts’ responses to its employ. Through grappling with the conceptual difficulties it presents, this paper argues that recognizing the “equal opportunity h! arasser” defense not only runs contrary to courts’ core assumptions regarding the nature of sexual harassment claims, but also threatens to undermine the effectiveness of sexual harassment litigation overall. In order to avoid these problems, either the “equal opportunity harasser” defense must be eliminated altogether or legislation must be enacted outlawing sexual harassment outside of the Title VII framework.
