In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2529

MICHAEL J. HAMM,

Plaintiff-Appellant,

v.

WEYAUWEGA MILK PRODUCTS, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court 

for the Eastern District of Wisconsin.

No. 00-C-1283—William E. Callahan, Jr., Magistrate Judge.

____________

ARGUED DECEMBER 10, 2003—DECIDED JUNE 13, 2003

____________

Before FLAUM, Chief Judge, and POSNER and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. Michael Hamm alleges that

he was sexually harassed at work by his male coworkers

and was terminated as a result of his complaints about

the harassment in violation of Title VII. The district

court concluded that Hamm could not establish that he

was discriminated against “because of” sex as required by

Title VII and granted summary judgment in favor of

Hamm’s employer, Weyauwega Milk Products. Because

we agree with the district court that Hamm’s evidence

only supports work performance conflicts or speculation

concerning his sexual orientation, we affirm.
2 No. 02-2529

1 Many of the comments made in connection with Hamm’s

complaints contain vulgar and offensive language, but we believe

direct quotes of the language used are required in order to

accurately describe Hamm’s allegations.

I. BACKGROUND

Michael Hamm, a heterosexual male, began working

at Weyauwega Milk Products, a producer of dairy products

including cheese, in 1992. Hamm held numerous positions during his employment and his job responsibilities

generally included cleaning the equipment and work area,

maintaining the supplies, and filling in for other production employees during breaks or days off. Hamm was

regarded as a good employee until approximately 1997,

when Weyauwega hired a friend of Hamm’s, Jeff Zietlow.

Beginning in early 1998, Hamm filed a number of complaints with Weyauwega management and with the Wisconsin Equal Rights Division (ERD) alleging harassment

by his male coworkers. The Weyauwega plant where

Hamm worked was almost entirely male; no women worked

in any of the areas of the plant in which Hamm worked.

Hamm filed his first written complaint with Weyauwega

management on January 15, 1998, stating that Dean

Bohringer, one of Hamm’s coworkers, threatened that if

Hamm did not do his job properly, then Bohringer would

“kick [his] ass to make [him] do so.”1

 Hamm also described an incident in the break room in which Bohringer

allegedly threw the door open and “started cursing and

swearing” at Hamm for failing to replace an empty barrel

of cleaning fluid. Hamm further alleged that Bohringer

threw the chemical barrel across the room, screamed at

him, and told him he should quit. Hamm admits that he

yelled back at Bohringer during the incident. Hamm’s

complaint related another event during which Bohringer

yelled at Hamm because, in Hamm’s view, Bohringer
No. 02-2529 3

2 Beginning in late summer 1998, Hamm also filed a number of

reports with Weyauwega police regarding incidents at work or

involving work employees. For example, in August 1998, Hamm

complained that he was being verbally abused at work, stating

that his coworkers were yelling at him, complaining that he

was not doing his job, and turning his machines on and off. As

similar claims were made in Hamm’s complaints to Weyauwega

and the ERD, we address these allegations through Hamm’s

complaints to those organizations. 

believed that he was disrupting equipment and not working quickly enough.

Also, beginning in late 1997, and continuing into 1998,

Weyauwega began to have concerns about Hamm’s work

performance. Many of the complaints about Hamm’s work

performance by Weyauwega management and Hamm’s

coworkers centered around their perception that Hamm

spent too much time talking to Zietlow and engaging

in horseplay. In response to Hamm’s initial complaint,

Weyauwega instructed Bohringer to “cut down on his

swearing when he is mad” and told Hamm to reduce the

amount of time he visits with other employees and to

more closely follow plant procedures.

During the summer of 1998, Weyauwega documented a

number of work errors committed by Hamm including

failing to perform his work duties, damaging a milk truck,

and spending too much time talking to Zietlow. Weyauwega

eventually gave Hamm a final written warning letter

dated August 18, 1998 instructing him to 1) stop the

horseplay in which he was involved, 2) stop talking to Jeff

Zietlow other than for job-related activities, and 3) cooperate with fellow employees and act as a team player.2

In September of 1998, Hamm filed his first complaint

with the ERD. His complaint alleged that he was called a

“faggot,” “bisexual,” and “girl scout,” and that his coworker
4 No. 02-2529

Dean Bohringer threatened to snap his neck and threw

things at him. Hamm also stated he was retaliated against

for reporting these incidents to Weyauwega management.

In response to Hamm’s complaints, Weyauwega set up a

meeting between Weyauwega management, Hamm, and

Bohringer. During the meeting, Bohringer apologized to

Hamm, and Hamm promised to focus on correctly performing his job.

Although exact dates of its genesis are unknown, it is

undisputed that during this time a rumor existed among

workers at the plant that Hamm and Zietlow’s friendship was romantic in nature. Hamm’s coworkers thought

it odd when Hamm gave Zietlow a boat and let him use

his four-wheel vehicle. The sometimes contentious nature

of their friendship also drew the attention of coworkers.

Hamm called the police department in January 1999 to

report that Zietlow, then under age 21, was in a bar

drinking and again in February 1999 to report that

Zietlow threatened him. Around the same time, Hamm

called the police to report that his vehicle had been damaged in the Weyauwega parking lot, and he indicated in his

deposition that he believed Zietlow had damaged the

vehicle. He also reported that Zietlow had scratched his

face. Hamm sued Zietlow in January of 1999 for the

return of his four-wheeler, two chain saws, and money

that Zietlow had borrowed but not returned. Zietlow was

suspended by Weyauwega in early 1999 for striking

Hamm’s brother, Joe Hamm, also a plant employee, with a

pipe. After Zietlow returned to work, Hamm reported that

Zietlow soaked him with a water hose. Zietlow was terminated in March of 1999.

Hamm filed his second complaint with Weyauwega on

March 24, 1999, claiming that coworker Fred Kivisto

accused Hamm of “looking out of the corner of my eyes

at him” and had threatened Hamm with a pipe. Hamm

also alleged that Kivisto told coworkers that Hamm was
No. 02-2529 5

a homosexual and warned them not to bend over in front

of him. Kivisto admitted in his deposition that he told

Hamm “not to be sizing me up.”

Approximately two months later, on May 25, 1999, Hamm

filed another complaint with Weyauwega alleging that

Mike Fischer, a coworker, and Bohringer were watching

him while he worked. He also complained that Weyauwega

had not adequately addressed his earlier complaints.

Hamm filed a fourth written complaint with Weyauwega

on June 7, 1999, claiming that Bohringer yelled obscenities

at him, ordering him to get off a forklift. He also repeated his complaint that Kivisto told coworkers not to

bend over in front of him.

Weyauwega investigated Hamm’s newest complaints.

According to Weyauwega, its interviews with Hamm’s

coworkers revealed that they were frustrated with his

inability to complete work tasks correctly and with his

instigation of problems and rumors at the plant. During his

interview for the investigation, Hamm suggested that

Bohringer and Fischer were trying to get him fired.

Hamm also filed a second complaint with the ERD in

early June 1999, alleging retaliation by his coworkers for

filing his first ERD complaint. Hamm alleged, among other

things, that Carl Wodrich, a coworker, and Fischer complained about Hamm’s work performance and interfered

with his work equipment in retaliation for Hamm’s ERD

complaint; that Kivisto threatened him with a pipe; that

Frank Young, another coworker, threatened to “shove the

water hose up [Hamm’s] ass” after he was hit with the

water from the hose; that management “thought I was ‘that

way’ because they had reason to believe Jeff Zietlow

might be ‘that way’ ”; and that “Dean Bohringer stated I

was a worthless piece of human flesh and later on shoved

me or purposely ran into me in the hallway.”

Weyauwega offered Hamm a severance agreement on

June 14, 1999, with two and one-half weeks’ pay; Hamm
6 No. 02-2529

negotiated an increase to seven weeks’ pay on June 15,

1999, but left his final approval of the agreement open.

Hamm underwent an exit interview reviewing COBRA

and 401(k) paperwork, and Hamm cleaned out his locker.

Hamm was not scheduled for work again, and he filed a

claim for unemployment compensation on June 22, 1999.

In a letter dated July 7, 1999, Weyauwega informed

Hamm that it regarded him as “voluntary quit” as of July

1, 1999, unless he agreed to an enhanced severance agreement.

On July 9, 1999, Hamm filed a third complaint with the

ERD restating his complaints about Bohringer’s outburst

while Hamm was on the forklift and the comments by

Kivisto. He also alleged that he was terminated in retaliation for his complaints. 

In September of 2000, Hamm filed suit in federal court,

alleging that he was sexually harassed and retaliated

against for filing complaints with Weyauwega and with

the Wisconsin Equal Rights Division in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

After at least nineteen depositions were taken and discovery was exchanged, Weyauwega moved for summary

judgment. The district court granted summary judgment

in favor of Weyauwega. Hamm appeals.

II. ANALYSIS

We review the district court’s decision to grant summary judgment de novo. Hilt-Dyson v. City of Chicago, 282

F.3d 456, 462 (7th Cir. 2002). Summary judgment is

properly entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s case, and on which that

party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322 (1986). In determining whether a genuine issue as to any material fact exists, we con-
No. 02-2529 7

strue all facts and draw all reasonable inferences in

favor of Hamm, the nonmoving party. See Hilt-Dyson, 282

F.3d at 462.

A. Sexual harassment claim

Hamm’s claim, that he was sexually harassed by his

male coworkers, requires us to navigate the tricky legal

waters of male-on-male sex harassment. The protections

of Title VII extend to both women and men. Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998)

(“Title VII’s prohibition of discrimination ‘because of . . . sex’

protects men as well as women.”). Further, sexual harassment claims are not limited to situations in which an

individual is harassed by someone of the opposite sex, but

may be made in cases such as this one, when samesex sexual harassment is alleged. Id. at 79. The protections

of Title VII have not been extended, however, to permit

claims of harassment based on an individual’s sexual

orientation. Hamner v. St. Vincent Hosp. & Health Care

Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000). Therefore, in

same-sex harassment cases, the central question is whether the harassment occurred “because of the plaintiff’s

sex.” Id.

Hamm alleges that his coworkers did not believe he fit

the sexual stereotype of a man, and that their sexual

stereotyping is evidence of discrimination “because of” sex.

See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250-52

(1989) (recognizing sex stereotyping as evidence of sex

discrimination); Spearman v. Ford Motor Co., 231 F.3d

1080, 1085 (7th Cir. 2000). In order to evaluate Hamm’s

claim, we must “consider any sexually explicit language

or stereotypical statements within the context of all of

the evidence of harassment in the case [to] determine

whether the evidence as a whole creates a reasonable

inference that the plaintiff was discriminated against
8 No. 02-2529

3 Our analysis focuses on Hamm’s need to show he was discriminated against “because of” sex because this appears to be the only

element of Hamm’s sexual harassment claim contested by

Weyauwega. For example, Weyauwega’s brief does not discuss

important questions such as whether all of the allegedly discriminatory conduct occurred within 300 days of the filing of Hamm’s

complaint or is properly considered under the continuing violation

doctrine, see Hall v. Bodine Electric Co., 276 F.3d 345, 353 (7th

Cir. 2002), whether the harassment suffered by Hamm was

“sufficiently severe or pervasive to alter the condition of the

victim’s employment and create an abusive working environment,”

Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67 (1986), or whether

Weyauwega acted negligently in responding to Hamm’s complaints about his coworkers’ conduct, as required to establish

its vicarious liability for sexual harassment, see Hall, 276 F.3d

at 356. 

because of his sex.” Id. A careful review of the record in this

case leads us to conclude that Hamm has not made a

showing sufficient to establish that he was discriminated

against “because of” sex.3

 Even drawing all reasonable

inferences in Hamm’s favor, his litany of complaints about

the actions of his coworkers inescapably relate to either

Hamm’s coworkers’ disapproval of his work performance

or their perceptions of Hamm’s sexual orientation.

Hamm’s own characterizations of many of the occurrences underlying his complaint demonstrate that he

believed they were related to his job performance. For

example, when explaining Bohringer’s alleged verbal abuse

during his deposition, Hamm surmised that Bohringer

swore at him “because apparently he figured I didn’t do

my job.” This rationale is a restatement of Hamm’s January 15, 1998 complaint in which he alleged that Bohringer threatened to “put him in a wheelchair” and “snap his

neck” and threw a chemical barrel across the room after

finding it empty. These incidents, too, are explained by
No. 02-2529 9

Hamm in terms of his job performance: “I have been

subjected to unnecessary verbal abuse from Dean Bohringer

on many occasions in the past year, I have been threatened

to quit or be killed. . . . He claims I do not do my job, I feel

he has no right to threaten me if this is his opinion.”

Indeed, Hamm concludes the complaint with the observation that: “The company refuses to have any harassment

[illegibile] nature cease, it is always ok to be threatened

when other employees feel you are not doing your job.”

Similarly, Hamm alleges that on another occasion Bohringer told him to “Get off that forklift motherfucker. You

stupid motherfucker,” after Bohringer discovered Hamm

on the forklift that Bohringer typically used. Hamm’s

statements make evident that these complaints related

to work-related disputes, more specifically, an apparent

belief by Bohringer that Hamm did not perform his job

adequately.

Expressions of frustration with Hamm’s work performance were not limited to Bohringer. Hamm’s June 1999

ERD complaint succinctly explains an episode with Frank

Young: “On May 4th Frank Young threatened to shove

a water hose up my ass for not doing my job correctly.”

Hamm also alleges that Mike Fischer tried to force his

equipment to malfunction, but also complains that Fischer

“made up a story I was not doing my job.” Hamm has not

produced any evidence to show that these episodes are

related to anything other than work-related disputes. See

Spearman, 231 F.3d at 1085 (use of sexually-explicit insults to express anger at plaintiff over work-related conflicts may be juvenile, but is not sex discrimination).

With respect to the other incidents that Hamm submits

as evidence of harassment, all the evidence points to the

conclusion that they relate to speculation by his coworkers about his sexual orientation. Again, Hamm’s own comments indicate that he perceived the conduct of his cowork-
10 No. 02-2529

ers to relate to their belief about his sexual orientation.

Hamm admits that his close friendship with Jeff Zietlow

was perceived by his coworkers to be romantic in nature.

In his first complaint to the ERD, he explained, “Dean

Bohringer believes that me and another individual are

gay at work, he constantly refers to me and Jeff Zietlow

as faggots. Dean has threatened to kill me, snap my neck

for what he thinks to be true.” In a note written November 12, 1998, and appended to his deposition, Hamm links

judgment of his sexuality by his peers to several of his

allegations: “I am single so therefore it would more so [be]

believed that I was homosexual, I have had numerous

people at the plant pick on me on account of this. . . .” His

March 24, 1999 complaint contains a similar explanation: “Fred tells me and other people that I am homosexual

and not to bend over by me. . . . I am so sick of being

threatened for what people perceive!”

In addition to assessing the way in which his coworkers’

statements were experienced by Hamm, see Oncale, 523

U.S. at 81, we also must consider, as in any sex harassment case, the “social context in which the particular

behavior occurs.” Id. Here it is difficult to separate many

of Hamm’s complaints from the significant amount of

horseplay that occurred at the Weyauwega plant. The

district court described the evidence in the record of the

horseplay at Weyauwega:

“Hamm testified that during free time, more specifically, ‘every evening and every day,’ employees

spray each other with water hoses; that someone

stuck a bed in the women’s locker room as a prank;

that Weyauwega employees went into a coworkers’

locker and ‘labeled his Vaseline jack-off jelly’; and

that Bohringer would frequently wrestle/engage

in physical horseplay with coworkers during work

time. Hamm’s brother, Joe Hamm, confirmed that
No. 02-2529 11

horseplay takes place at Weyauwega, including

employees spraying each other with water hoses

daily and throwing cheese curds at each other

numerous times each day.”

199 F. Supp.2d 878, 896 n.1 (E.D.Wis. 2002). Hamm admits that even his alleged harassers were the victims of

workplace pranks. For example, in his deposition, Hamm

described an incident directed at Bohringer in which one

of the workers wrote “Dean plus [male name]” all over a

door. Hamm himself was disciplined for excessive participation in horseplay at the plant, particularly in his

final warning. Of course we do not mean to suggest that

the presence of horseplay in a workplace precludes a claim

of sexual harassment, but we do recognize that, in some

cases, sexually explicit remarks among male coworkers

may be “simply expressions of animosity or juvenile provocation.” Johnson v. Hondo, Inc., 125 F.3d 408, 412 (7th

Cir. 1997).

Even Hamm’s claim that Bohringer referred to him as

“girl scout,” the strongest factual allegation he makes

that his coworkers’ actions were linked to his nonconformance to sex stereotypes, does not establish that he was

discriminated against because of his sex. In his deposition, Bohringer alleged that he referred to his colleagues

with this term indiscriminately, and one of Weyauwega’s

managers, Dan Stearns, testified that Bohringer had

even used the term to refer to him. Hamm acknowledges

that Bohringer called other men at the plant “girl scouts,”

but he calls this fact “immaterial.” Bohringer’s use of

the term to refer to other men, including a supervisor, is

hardly immaterial; Hamm cannot point to its use as

persuasive evidence that he was treated differently because of his sex when other men at the plant were referred

to by the same name. Because there is nothing to suggest that Bohringer viewed the other men at the plant
12 No. 02-2529

4 Other allegations Hamm makes in support of his sex harassment claim do not add up. For instance, Hamm argues that

Bohringer called him “kid” and remarked that he had a highpitched voice. Hamm takes these statements out of context from

Bohringer’s deposition; Bohringer commented that Hamm’s voice

was high-pitched when describing how Hamm screamed at him.

In another example, Hamm argues that Kivisto threatened to take

him to Lake Michigan and leave him at the bottom of the lake.

Yet Hamm concedes in his deposition that this incident took

place almost five years before he first complained of harassment,

and thus it cannot be used to support his claim. 

as nonconforming to sexual stereotypes, his use of the

term to describe Hamm cannot support an inference of

sex discrimination.4

That the conduct complained of by Hamm does not fall

within a sexual stereotyping claim cognizable under

Title VII is made even more evident by a comparison to

the cases in which courts have found such a claim. In

Price Waterhouse, the plaintiff was a woman passed over

for a promotion, and partners in the company remarked

that she was “macho,” “overcompensated for being a

woman,” and needed to “walk more femininely, talk more

femininely, dress more femininely, wear more make-up,

have her hair styled, and wear jewelry.” 490 U.S. at 235.

In Doe v. City of Belleville, Illinois, 119 F.3d 563, 568, 576-

77 (7th Cir. 1997), vacated, 523 U.S. 1001 (1998), the male

plaintiffs’ sex was constantly questioned; they were ridiculed for wearing an earring, threatened with sexual

assault, and one of the plaintiffs’ testicles was grabbed to

determine whether he was male or female. In Nichols

v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 874

(9th Cir. 2001), the male plaintiff was attacked for walking and carrying his tray “like a woman,” mocked for not

having sexual intercourse with a waitress who was his
No. 02-2529 13

friend, referred to as “she” and “her,” and experienced

vulgar name-calling cased in female terms. Unlike Doe and

Azteca, where the plaintiffs presented additional evidence

that the harassment implicated sex rather than sexual

orientation, Hamm’s allegations are linked either to his

coworkers’ perceptions of his work performance or his

sexual orientation. See Oncale, 523 U.S. at 80 (“[W]orkplace harassment . . . is [not] automatically discrimination because of sex merely because the words used have

sexual content or connotations.”).

Hamm’s case more closely tracks Spearman v. Ford Motor

Co., 231 F.3d 1080 (7th Cir. 2000). In that case, Spearman

claimed that vulgar and sexually explicit insults directed

at him and graffiti posted by his coworkers were motivated

by sexual stereotyping, arguing that his coworkers perceived him to be too feminine to fit the masculine image

at Ford. Id. at 1085. He alleged that a coworker called

him a “little bitch,” and stated that he hated Spearman’s

“gay ass,” that workplace graffiti linked him with AIDS

and labeled him as gay, and that he was assigned duties

that he believed should be reserved for women. Id. at 1082-

84. This court rejected Spearman’s claim that this evidence established discrimination because of sex and instead found that the evidence “clearly demonstrates that

Spearman’s problems resulted from his altercations

with coworkers over work issues and because of his apparent homosexuality.” Id. at 1085. Hamm attempts to

distinguish Spearman by arguing that the plaintiff in

that case was homosexual and he is heterosexual. But

we do not focus on the sexuality of the plaintiff in determining whether a Title VII violation has occurred. See

Hondo, 125 F.3d at 415 (“In the different sex situation, we

do not ask a slew of subjective and invasive questions

about the sexual orientation of the perpetrator or the

victim. We ask whether the treatment meted out created

a hostile work environment because the victim was singled
14 No. 02-2529

5 We recognize that distinguishing between failure to adhere to

sex stereotypes (a sexual stereotyping claim permissible under

Title VII) and discrimination based on sexual orientation (a claim

not covered by Title VII) may be difficult. This is especially true

in cases in which a perception of homosexuality itself may result

from an impression of nonconformance with sexual stereotypes.

Doe, 119 F.3d at 593 (“A homophobic epithet like ‘fag’ for example,

may be as much of a disparagement of a man’s perceived effeminate qualities as it is of his perceived sexual orientation. . . . [I]t

is not always possible to rigidly compartmentalize the types of

bias that these types of epithets represent.”). We need not face

this difficult problem here because Hamm does not present

evidence to establish that the conduct he complains of “was not

merely tinged with offensive sexual connotations, but actually

constituted ‘discrimination because of sex.’ ” Oncale, 523 U.S.

at 81. 

out because of his or her gender.”). Indeed, Hamm presents a less difficult case than Spearman in that Hamm

himself characterizes the harassment of his peers in terms

of work-related disputes and perceptions of his sexual

orientation and does not link their comments to his sex.

Even when construing all facts and drawing all reasonable

inferences in Hamm’s favor and considering Hamm’s

coworkers’ conduct relating to his job performance in

conjunction with their comments regarding his sexual

orientation in order to form the fullest picture, Hamm

has failed to make a sufficient showing that he was harassed because of his sex.5

B. Retaliation claim

Hamm also alleges that he was terminated by

Weyauwega in retaliation for filing complaints of sexual

harassment with the company and the ERD. Weyauwega

claims that Hamm was not terminated, and that based on

his application for unemployment compensation and his
No. 02-2529 15

refusal to respond to the severance agreement, he was

properly regarded as “voluntarily quit.” We need not

resolve this dispute, for even if Hamm was terminated

he cannot make out a case for retaliation under Title VII.

Title VII prohibits an employer from discriminating

against an employee “because he has opposed any practice made an unlawful employment practice by” Title VII.

42 U.S.C. § 2000e-3(a). In other words, Title VII protects

an employee from “retaliation for complaining about the

types of discrimination it prohibits.” Miller v. Am. Family

Mutual Ins. Co., 203 F.3d 997, 1007 (7th Cir. 2000).

Hamm’s sexual harassment claim fails because he has

not shown that he was discriminated against “because of”

sex, as required under Title VII. His retaliation claim

was properly decided by the district court for the same

reason: his complaints to Weyauwega and the ERD did

not concern an employment practice that violated Title

VII. See Hamner, 224 F.3d at 706-07.

III. CONCLUSION

For the forgoing reasons, we AFFIRM the decision of the

district court.

POSNER, Circuit Judge, concurring. Judge Williams’s

opinion is consistent with the cases and the facts, and

it reaches a result (denial of liability) that I agree with.

I cannot fairly quarrel with the methodological conservatism of her approach. But I think it worth recording my

conviction that the case law has gone off the tracks in

the matter of “sex stereotyping” and that if it got back
16 No. 02-2529

on, this case could be decided on a simpler and more

intuitive ground and one that would reduce future litigation.

The case law as it has evolved holds, as Judge Williams

explains, that although Title VII does not protect homosexuals from discrimination on the basis of their sexual

orientation, it protects heterosexuals who are victims of

“sex stereotyping” or “gender stereotyping.” Spearman

v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000)

(“the record . . . shows that Spearman’s co-workers maligned him because of his apparent homosexuality, and

not because of his sex” (so no liability)); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d Cir.

2001) (if “the harasser was acting to punish the victim’s

noncompliance with gender stereotypes,” then liability);

Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d

864, 874-75 (9th Cir. 2001) (same); Schmedding v. Tnemec

Co., 187 F.3d 862, 865 (8th Cir. 1999) (same) (“although

Schmedding concedes that the use [in his complaint] of

the phrase ‘perceived sexual preference’ may have been

confusing, he asserts that the phrase indicates or shows

that the harassment included rumors that falsely labeled

him as homosexual in an effort to debase his masculinity,

not that he was harassed because he is homosexual or

perceived as being a homosexual”).

The origin of this curious distinction, which would be

very difficult to explain to a lay person (an indication, often

and I think here, that the law is indeed awry), is the

Supreme Court’s decision in Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). Part of the evidence that the plaintiff in that case had been denied promotion because she

was a woman was that her male superiors hadn’t liked

her failure to conform to their expectations regarding

feminine dress and deportment. Id. at 235-36. That was

indeed a reason to suspect that the firm discriminated

against women. But there is a difference that subsequent
No. 02-2529 17

cases have ignored between, on the one hand, using evidence of the plaintiff’s failure to wear nail polish (or, if

the plaintiff is a man, his using nail polish) to show that

her sex played a role in the adverse employment action

of which she complains, and, on the other hand, creating

a subtype of sexual discrimination called “sex stereotyping,” as if there were a federally protected right for male

workers to wear nail polish and dresses and speak in

falsetto and mince about in high heels, or for female

ditchdiggers to strip to the waist in hot weather. If a

court of appeals requires lawyers presenting oral argument to wear conservative business dress, should a male

lawyer have a legal right to argue in drag provided that

the court does not believe that he is a homosexual, against

whom it is free to discriminate? That seems to me a very

strange extension of the Hopkins case.

The “logic” of the extension is that if an employer disapproves of conduct by a man that it would not disapprove

of in a woman, or conduct by a woman that it would not

disapprove of in a man, the disapproval is “because of” sex.

What is true, as I have said, is that this asymmetry of

response may be evidence of sex discrimination; but to

equate it to sex discrimination is a mistake. If an employer

refuses to hire unfeminine women, its refusal bears more

heavily on women than men, and is therefore discriminatory. That was the Hopkins case. But if, as in this case,

an employer whom no woman wants to work for (at least

in the plaintiff’s job classification) discriminates against

effeminate men, there is no discrimination against men,

just against a subclass of men. They are discriminated

against not because they are men, but because they are

effeminate.

If this analysis is rejected, the absurd conclusion follows that the law protects effeminate men from employment discrimination, but only if they are (or are believed

to be) heterosexuals. To impute such a distinction to the
18 No. 02-2529

authors of Title VII is to indulge in a most extravagant

legal fiction. It is also to saddle the courts with the making of distinctions that are beyond the practical capacity

of the litigation process. Hostility to effeminate men and

to homosexual men, or to masculine women and to lesbians, will often be indistinguishable as a practical matter,

especially the former. Effeminate men often are disliked

by other men because they are suspected of being homosexual (though the opposite is also true—effeminate

homosexual men may be disliked by heterosexual men

because they are effeminate rather than because they are

homosexual), while mannish women are disliked by some

men because they are suspected of being lesbians and

by other men merely because they are not attractive to

those men; a further complication is that men are more

hostile to male homosexuality than they are to lesbianism.

To suppose courts capable of disentangling the motives

for disliking the nonstereotypical man or woman is a

fantasy.

Inevitably a case such as this impels the employer to

try to prove that the plaintiff is a homosexual (the employer’s lawyer actually said at the argument that a

plaintiff’s homosexuality would be a complete defense to a

suit of this kind) and the plaintiff to prove that he is a

heterosexual, thus turning a Title VII case into an inquiry into individuals’ sexual preferences—to what end

connected with the policy of the statute I cannot begin

to fathom. An unattractive byproduct of the inquiry is a

gratuitous disparagement of homosexuals—as when

Hamm in his brief, remarking on how “his harassers

tormented him with the ultimate attack on his masculinity,

namely, barraging him with every vulgar, slang phase

for a homosexual,” concludes: “For a heterosexual male,

such slurs are tantamount to verbal castration” (emphasis

mine)—as if they were unwounding when directed at a

homosexual male.
No. 02-2529 19

“Sex stereotyping” should not be regarded as a form of

sex discrimination, though it will sometimes, as in the

Hopkins case, be evidence of sex discrimination. In most

cases—emphatically so in a case such as this in which, so

far as appears, there are no employees of the other sex

in the relevant job classification—the “discrimination”

that results from such stereotyping is discrimination

among members of the same sex. The distinction can be

illustrated by a pair of examples. If the producer of Antony

and Cleopatra refuses to cast an effeminate man as

Antony or a mannish woman as Cleopatra, he is not

discriminating against men in the first case and women

in the second, although he is catering to the audience’s

sex stereotypes. But if a fire department refused to hire

mannish women to be firefighters, this would be evidence that it was discriminating against women, because

mannish women are more likely than stereotypically

feminine women to meet the demanding physical criteria

for a firefighter.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-13-03