Winkelman, C. Lee

English

Southern Methodist University

SMU Law ReviewVolume 55 | Issue 4 Article 172002Bibby v. Philadelphia Coca-Cola Bottling Co. andSame-Sex Sexual Harassment in the Workplace:The Third Circuit Forecloses the Possibility ofEqual Treatment for Homosexuals under Title VIIC. Lee WinkelmanFollow this and additional works at: https://scholar.smu.edu/smulrThis Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Reviewby an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.Recommended CitationC. Lee Winkelman, Bibby v. Philadelphia Coca-Cola Bottling Co. and Same-Sex Sexual Harassment in the Workplace: The Third CircuitForecloses the Possibility of Equal Treatment for Homosexuals under Title VII, 55 SMU L. Rev. 1825 (2002)https://scholar.smu.edu/smulr/vol55/iss4/17BIBBY V. PHILADELPHIA COCA-COLABOTTLING CO. AND SAME-SEX SEXUALHARASSMENT IN THE WORKPLACE:THE THIRD CIRCUIT FORECLOSESTHE POSSIBILITY OF EQUALTREATMENT FOR HOMOSEXUALS UNDERTITLE VIIC. Lee Winkelman*N the 1998 case of Oncale v. Sundowner Offshore Services, Inc.,' theSupreme Court reversed the Fifth Circuit Court of Appeals2 and heldthat "same sex" sexual harassment was actionable under Title VII ofthe 1964 Civil Rights Act.3 Last summer, in Bibby v. Philadelphia Coca-Cola Bottling Co.,4 the Third Circuit had the opportunity to expand thisholding by concluding that general anti-gay harassment is actionableunder Title VII as discrimination on the basis of sex and not sexual orien-tation. It declined to do so and, instead, narrowed the Third Circuit'ssexual harassment jurisprudence by holding that, as a matter of law, gen-eral anti-gay harassment is not actionable under Title VII, as it constitutesdiscrimination on the basis of sexual orientation, not on sex.5 This hold-ing is not only inconsistent with Title VII "sexual stereotypes" jurispru-dence,6 but also places an unfair burden on gay and lesbian plaintiffsbringing action for same-sex sexual harassment by essentially requiring* B.A., 1999, The University of Texas at Austin; J.D. expected May, 2003, SouthernMethodist University Dedman School of Law1. 523 U.S. 75 (1998).2. Prior to Oncale, there was a wholesale refusal to countenance Title VII same-sexsexual harassment suits in the Fifth Circuit. See, e.g., Garcia v. Elf Atochem N. Am., 28F.3d 446, 451-52 (5th Cir. 1994) (holding that harassment by a male supervisor against amale subordinate does not state a claim under Title VII even though the harassment hassexual overtones.). However, even before the Supreme Court's ruling in Oncale, somefederal courts had allowed claims for same-sex sexual harassment under particular circum-stances. See, e.g., Wright v. Methodist Youth Servs., 511 F. Supp. 307 (N.D. Ill. 1981)(holding that male plaintiff stated a claim under Title VII where plaintiff had been dis-charged by the defendant because he refused the sexual advances of his male homosexualsupervisor).3. 42 U.S.C. §§ 2000e-2(a)(1) (2001); Oncale, 523 U.S. at 79-80.4. 260 F.3d 257 (3d Cir. 2001).5. See id. at 264-65.6. E.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (holding that discrimi-nation on the basis of gender stereotypes constitutes discrimination on the basis of sex).1825SMU LAW REVIEWthem to demonstrate that their harassers were not motivated by anti-gayanimus.John Bibby, a male homosexual, had been an employee of the Philadel-phia Coca-Cola Bottling Co. since 1978. On August 12, 1993, he left workfor a few months citing medical reasons. 7 He returned to work on De-cember 23, 1993. On that same day he was violently assaulted by a co-worker named Frank Berthcsi. In addition, while at the top of a set ofsteps working at a machine that put cases of soda on wooden or plasticpallets, Berthcsi, who was driving a forklift, slammed into the load of ap-plets under the stairs effectively blocking Bibby's exit from the platformon which he was standing.8 Moreover, Berthcsi repeatedly yelled atBibby that "everybody knows your gay as a three dollar bill," "everybodyknows you're a faggot," and "everybody knows you take it up the ass."In addition, Berthcsi would call Bibby a "sissy." 9Bibby also claimed that supervisors harassed him by yelling at him, ig-noring his reports of problems with machinery, and arbitrarily enforcingrules against him in situations where infractions by other employees weregenerally ignored. 10 Finally, Bibby claimed that sexual graffiti bearing hisname was written in the bathrooms and allowed to remain on the wallslonger than other graffiti."In early 1998, Bibby filed a pro se complaint against Coca-Cola in theEastern District of Pennsylvania. 12 After subsequently retaining counsel,he amended his complaint. In the amended complaint, he alleged that hehad been sexually harassed in violation of Title VII. In addition, theamended complaint included two state-law claims, one for intentional in-fliction of emotional distress, and one for assault and battery.' 3The district court granted, in part, Coke's motion to dismiss, dismissingBibby's assault and battery claim.14 After a short discovery period, Coca-Cola filed a motion for summary judgment on the sexual harassmentclaim. The district court granted the motion, holding that the evidenceindicated that Bibby was harassed not because of his sex but because ofhis sexual orientation.' 57. "Bibby was having pains in his stomach and chest when he was found by his super-visor with his eyes closed .... He was accused of sleeping on the job. Bibby asked forpermission to go to the hospital and was told by the supervisor 'just go.' As he was leaving,the supervisor told him he was terminated, although in fact he was suspended with theintent to terminate. Bibby was hospitalized for several weeks for treatment of depressionand anxiety. During his suspension and after receiving clearance from his treating physi-cian, he met with his supervisors to arrange his return to work. At this meeting, he wastold that he would be paid $5,000 and would be given benefits... if he resigned .... Bibbyrefused the offer and was terminated but, following arbitration of a grievance he filed, hewas reinstated and awarded back pay." Bibby, 260 F.3d at 259.8. Id.9. Id. at 260.10. Id.11. Id.12. Id.13. Id.14. Id.15. Id.1826 [Vol. 55WINKELMAN CASE NOTEBibby appealed, claiming that the district court erred in its finding. 16In addition, Bibby further argued that, if upheld, the district court's rulingwould place a special burden on gay and lesbian plaintiffs alleging same-sex sexual harassment to prove that the harassment was not motivated bytheir sexual orientation. 17Writing for the Third Circuit, Judge Barry stated unequivocally thatsame-sex sexual harassment based on sexual orientation was not actiona-ble under Title VII.18 Thus, on appeal, the Third Circuit had to determinewhether the anti-gay harassment inflicted on Bibby was motivated by hisgender or by his sexual orientation.19According to the Third Circuit, the evidence did not support the con-clusion that Bibby was being harassed because he was a man.20 Indeed,the court found that Bibby did not even argue that he was being harassedbecause of his sex.21 According to the court, "his claim was, pure andsimple, that he was discriminated against because of his sexual orienta-tion," and "no reasonable finder of fact could reach the conclusion thathe was discriminated against because he was a man."'22 The court gavelittle weight to Bibby's argument that this ruling placed a special burdenon gay and lesbian plaintiffs to effectively prove that harassment directedtowards them was not based on anti-gay or anti-lesbian animus.23 Thecourt held that once a showing had been made that the harassment wasdirected at the plaintiff because of his or her sex, it would be no defensethat the harassment may have also been partially motivated by the plain-tiff's sexual orientation.24The effect of the Third Circuit's decision was to foreclose any opportu-nity for a gay or lesbian plaintiff to prevail under Title VII for anti-homo-sexual harassment or discrimination. That is, the Third Circuit held that,as a matter of law, anti-homosexual harassment is not discrimination be-cause of sex, and is thus not actionable under Title VII. The Third Circuitwent too far; its opinion is indefensible in the face of Oncale and caseslike Price Waterhouse v. Hopkins,2 5 which have held that "sex-stereotyp-ing" is harassment because of sex.In Oncale, the Supreme Court held that there were three distinct situa-tions in which same sex harassment may be considered harassment be-cause of sex. 26 The first is where there is evidence that the harasser16. Id. at 261.17. Bibby, 260 F.3d at 261.18. Id. (citing Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. NewBalance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Williamson v. A.G. Edwards& Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989)).19. See Bibby, 260 F.3d at 261.20. Id. at 264.21. Id.22. Id.23. Id.24. Id.25. 490 U.S. 228 (1989).26. See Oncale, 523 U.S. at 80-81.2002] 1827SMU LAW REVIEWsexually desires the victim. 27 The second is found where there is no sex-ual attraction, but where the harasser displays hostility to the presence ofa particular sex in the workplace.2 8 Third, the plaintiff may present evi-dence that the harasser's conduct was motivated by a belief that theplaintiff did not conform to the stereotypes of his or her gender.29This "gender stereotypes" method is based on Price Waterhouse. InPrice Waterhouse, the Supreme Court held that where the plaintiff hadbeen denied partnership at her accounting firm partly because the otherpartners felt she was "macho," "masculine," and "needed a course incharm school," the employer had engaged in illegal discrimination be-cause of sex.3O Explaining its ruling the court stated that "[i]n the contextof sex stereotyping, an employer who acts on the basis of a belief that awoman cannot be aggressive, or that she must not be, has acted on thebasis of gender."'31The Bibby court should have followed the lead of Price Waterhouse.Price Waterhouse and its progeny provide strong support for the homo-sexual plaintiff who is harassed because he is a "sissy," or she is "toomasculine."'32 Under the "gender stereotypes" jurisprudence a defendantwho exhibits anti-gay animus would violate Title VII to the extent thatthe animus is based on a belief that the plaintiffs personal characteristicsor lifestyle do not fit with the defendant's stereotypical view of malenessand femaleness. 33 Indeed, Bibby even produced evidence that his har-asser called him a "sissy." Comments like these are part and parcel ofanti-gay harassment. The Third Circuit erred in failing to make that con-27. Id. at 80. For example, when a gay or lesbian supervisor treats an employee in away that is sexually charged, it is reasonable to infer that the harasser acts as he or she doesbecause of the victim's sex. Bibby, 260 F.3d at 262.28. Oncale, 523 U.S. at 80 (stating that same-sex sexual harassment could be found "ifa female victim is harassed in such sex specific and derogatory terms by another woman asto make it clear that the harasser is motivated by general hostility to the presence of wo-men in the workplace"). "For example, a woman chief executive officer of an airline mightbelieve that women should not be pilots and might treat women pilots with hostilityamounting to harassment. Similarly, a male doctor might believe that men should not beemployed as nurses, leading him to make harassing statements to a male nurse with whomhe works." Bibby, 260 F.3d at 262.29. See Oncale, 523 U.S. at 80-81.30. See id. at 250.31. Id.32. See Doe v. City of Belleville, 119 F.3d 563, 580-81 (7th Cir.1997) (holding thatwhere co-workers verbally and physically harassed a young man because he wore an ear-ring, repeatedly asked him whether he was a girl or a boy, and threatened to assault himsexually, he presented sufficient evidence to support a conclusion that the harassmentamounted to discrimination because of sex).33. Unfortunately, courts have been very reluctant to rule either way on whether ahomosexual may prevail under Title VII for harassment caused by anti-gay animus. SeeSimonton, 232 F.3d at 37 (discussion of the theory, but declining to rule on it because theplaintiff had not raised it before the district court); Shermer v. ill. Dep't of Trans., 171 F.3d475, 478 (7th Cir. 1999) (discussion of the theory, but declining to rule on it because theplaintiff did not raise the sexual stereotyping argument at the district court level or in hispleadings.); Higgins, 194 F.3d at 259-60 (declining to rule on the theory because it had beenwaived by the plaintiff.).1828 [Vol. 55WINKELMAN CASE NOTEnection, and seriously treating Bibby's case as a "sexual stereotypes"case.In sum, though it gave cursory treatment to Price Waterhouse,34 theBibby court summarily ignored it, and incorrectly held that anti-gay har-assment, as a matter of law, is not harassment because of sex. Certainly,such a holding clearly, and incorrectly, rejects the Title VII "gender ste-reotypes" jurisprudence.The Third Circuit was also incorrect when it surmised that its rulingwould not place an extra burden on gay and lesbian plaintiffs bringing anaction for same-sex sexual harassment. Because the court has foreclosedany opportunity for the plaintiff to bring an action for anti-gay harass-ment under the "gender stereotypes" jurisprudence, a homosexual plain-tiff must prove harassment because of sex, via one of the other two routesoutlined in Oncale. Indeed, under this standard the feminine heterosex-ual male or masculine heterosexual woman fares a much better chance ofprevailing under Title VII, than does a homosexual.35Finally, consider the dissent in Rene v. MGM Grand Hotel.36 In Rene,the Ninth Circuit held that a homosexual male employee had notpresented a case of sexual harassment under Title VII where his onlyevidence included harassment based on anti-gay animus.37 Dissenting,Judge Nelson felt that while "gay-baiting insults and teasing are not ac-tionable under Title VII, a line is crossed when the abuse is physical andsexual."'38 Thus, Judge Nelson would find discrimination because of sexwhere the abuse is physical with sexual overtones. 39The abuse doled out in Rene was similar to that in Bibby.40 The Bibbycourt wholly failed to analyze Bibby's case under the first prong of On-cale-the sexual desire test. This failure was in error. Bibby's abusecould very well have been motivated by the homosexual desires of a het-erosexual man. Bibby's attacker "may have targeted him for sexual plea-sure, as an outlet for rage, as a means of affirming [his] ownheterosexuality, or any combination of a myriad of factors."'41 In sum,the effect was to humiliate Bibby as a man, 42 not a homosexual. Thistype of abuse is certainly actionable under Title VII.The Third Circuit is, unfortunately, representative of the general senti-ment in this area of Title VII jurisprudence. While many courts express34. The court simply outlined the law in that area, but gave no real consideration toapplying it to Bibby's case.35. See, e.g., Doe, 119 F.3d at 581 ("[A] man who is harassed because his voice is soft,his physique is slight, his hair is long, or because in some other respect he exhibits mascu-linity in a way that does not meet his coworkers' idea of how men are to appear andbehave, is harassed because of his sex.").36. 243 F.3d 1206 (9th Cir. 2001).37. See id. at 1209-10.38. Id. at 1211 (Nelson, J., dissenting).39. See id.40. Both men were pushed up and pinned against walls.41. Rene, 243 F.3d at 1211 (Nelson, J., dissenting).42. See id.20021 1829SMU LAW REVIEWsympathy for homosexual plaintiffs who have been harassed because ofanti-gay sentiment, they have been reluctant find for them. 43 This is un-necessary. Though it might take another decision of the Supreme Courtto clarify the point, Price Waterhouse, through its endorsement of "sexstereotype" jurisprudence, allows a cause of action for anti-gay harass-ment under Title VII.43. Rene, 243 F.3d at 1209 ("The degrading and humiliating treatment Rene contendshe received from his fellow workers is appalling, and is conduct that is most disturbing tothis court. However, this type of discrimination, based on sexual orientation, does not fallwithin the prohibitions of Title VII.").1830 [Vol. 55Index0 LAS &

Bibby v. Philadelphia Coca-Cola Bottling Co. and Same-Sex Sexual Harassment in the Workplace: The Third Circuit Forecloses the Possibility of Equal Treatment for Homosexuals under Title VII

SMU Digital Repository

SMU Law Review
Volume 55 | Issue 4 Article 17
2002
Bibby v. Philadelphia Coca-Cola Bottling Co. and
Same-Sex Sexual Harassment in the Workplace:
The Third Circuit Forecloses the Possibility of
Equal Treatment for Homosexuals under Title VII
C. Lee Winkelman
Follow this and additional works at: https://scholar.smu.edu/smulr
This Case Note is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in SMU Law Review
by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu.
Recommended Citation
C. Lee Winkelman, Bibby v. Philadelphia Coca-Cola Bottling Co. and Same-Sex Sexual Harassment in the Workplace: The Third Circuit
Forecloses the Possibility of Equal Treatment for Homosexuals under Title VII, 55 SMU L. Rev. 1825 (2002)
https://scholar.smu.edu/smulr/vol55/iss4/17
BIBBY V. PHILADELPHIA COCA-COLA
BOTTLING CO. AND SAME-SEX SEXUAL
HARASSMENT IN THE WORKPLACE:
THE THIRD CIRCUIT FORECLOSES
THE POSSIBILITY OF EQUAL
TREATMENT FOR HOMOSEXUALS UNDER
TITLE VII
C. Lee Winkelman*
N the 1998 case of Oncale v. Sundowner Offshore Services, Inc.,' the
Supreme Court reversed the Fifth Circuit Court of Appeals2 and held
that "same sex" sexual harassment was actionable under Title VII of
the 1964 Civil Rights Act.3 Last summer, in Bibby v. Philadelphia Coca-
Cola Bottling Co.,4 the Third Circuit had the opportunity to expand this
holding by concluding that general anti-gay harassment is actionable
under Title VII as discrimination on the basis of sex and not sexual orien-
tation. It declined to do so and, instead, narrowed the Third Circuit's
sexual harassment jurisprudence by holding that, as a matter of law, gen-
eral anti-gay harassment is not actionable under Title VII, as it constitutes
discrimination on the basis of sexual orientation, not on sex.5 This hold-
ing is not only inconsistent with Title VII "sexual stereotypes" jurispru-
dence,6 but also places an unfair burden on gay and lesbian plaintiffs
bringing action for same-sex sexual harassment by essentially requiring
* B.A., 1999, The University of Texas at Austin; J.D. expected May, 2003, Southern
Methodist University Dedman School of Law
1. 523 U.S. 75 (1998).
2. Prior to Oncale, there was a wholesale refusal to countenance Title VII same-sex
sexual harassment suits in the Fifth Circuit. See, e.g., Garcia v. Elf Atochem N. Am., 28
F.3d 446, 451-52 (5th Cir. 1994) (holding that harassment by a male supervisor against a
male subordinate does not state a claim under Title VII even though the harassment has
sexual overtones.). However, even before the Supreme Court's ruling in Oncale, some
federal courts had allowed claims for same-sex sexual harassment under particular circum-
stances. See, e.g., Wright v. Methodist Youth Servs., 511 F. Supp. 307 (N.D. Ill. 1981)
(holding that male plaintiff stated a claim under Title VII where plaintiff had been dis-
charged by the defendant because he refused the sexual advances of his male homosexual
supervisor).
3. 42 U.S.C. §§ 2000e-2(a)(1) (2001); Oncale, 523 U.S. at 79-80.
4. 260 F.3d 257 (3d Cir. 2001).
5. See id. at 264-65.
6. E.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (holding that discrimi-
nation on the basis of gender stereotypes constitutes discrimination on the basis of sex).
1825
SMU LAW REVIEW
them to demonstrate that their harassers were not motivated by anti-gay
animus.
John Bibby, a male homosexual, had been an employee of the Philadel-
phia Coca-Cola Bottling Co. since 1978. On August 12, 1993, he left work
for a few months citing medical reasons. 7 He returned to work on De-
cember 23, 1993. On that same day he was violently assaulted by a co-
worker named Frank Berthcsi. In addition, while at the top of a set of
steps working at a machine that put cases of soda on wooden or plastic
pallets, Berthcsi, who was driving a forklift, slammed into the load of ap-
plets under the stairs effectively blocking Bibby's exit from the platform
on which he was standing.8 Moreover, Berthcsi repeatedly yelled at
Bibby that "everybody knows your gay as a three dollar bill," "everybody
knows you're a faggot," and "everybody knows you take it up the ass."
In addition, Berthcsi would call Bibby a "sissy." 9
Bibby also claimed that supervisors harassed him by yelling at him, ig-
noring his reports of problems with machinery, and arbitrarily enforcing
rules against him in situations where infractions by other employees were
generally ignored. 10 Finally, Bibby claimed that sexual graffiti bearing his
name was written in the bathrooms and allowed to remain on the walls
longer than other graffiti."
In early 1998, Bibby filed a pro se complaint against Coca-Cola in the
Eastern District of Pennsylvania. 12 After subsequently retaining counsel,
he amended his complaint. In the amended complaint, he alleged that he
had been sexually harassed in violation of Title VII. In addition, the
amended complaint included two state-law claims, one for intentional in-
fliction of emotional distress, and one for assault and battery.' 3
The district court granted, in part, Coke's motion to dismiss, dismissing
Bibby's assault and battery claim.14 After a short discovery period, Coca-
Cola filed a motion for summary judgment on the sexual harassment
claim. The district court granted the motion, holding that the evidence
indicated that Bibby was harassed not because of his sex but because of
his sexual orientation.'
5
7. "Bibby was having pains in his stomach and chest when he was found by his super-
visor with his eyes closed .... He was accused of sleeping on the job. Bibby asked for
permission to go to the hospital and was told by the supervisor 'just go.' As he was leaving,
the supervisor told him he was terminated, although in fact he was suspended with the
intent to terminate. Bibby was hospitalized for several weeks for treatment of depression
and anxiety. During his suspension and after receiving clearance from his treating physi-
cian, he met with his supervisors to arrange his return to work. At this meeting, he was
told that he would be paid $5,000 and would be given benefits... if he resigned .... Bibby
refused the offer and was terminated but, following arbitration of a grievance he filed, he
was reinstated and awarded back pay." Bibby, 260 F.3d at 259.
8. Id.
9. Id. at 260.
10. Id.
11. Id.
12. Id.
13. Id.
14. Id.
15. Id.
1826 [Vol. 55
WINKELMAN CASE NOTE
Bibby appealed, claiming that the district court erred in its finding. 16
In addition, Bibby further argued that, if upheld, the district court's ruling
would place a special burden on gay and lesbian plaintiffs alleging same-
sex sexual harassment to prove that the harassment was not motivated by
their sexual orientation.
17
Writing for the Third Circuit, Judge Barry stated unequivocally that
same-sex sexual harassment based on sexual orientation was not actiona-
ble under Title VII.18 Thus, on appeal, the Third Circuit had to determine
whether the anti-gay harassment inflicted on Bibby was motivated by his
gender or by his sexual orientation.19
According to the Third Circuit, the evidence did not support the con-
clusion that Bibby was being harassed because he was a man.20 Indeed,
the court found that Bibby did not even argue that he was being harassed
because of his sex.21 According to the court, "his claim was, pure and
simple, that he was discriminated against because of his sexual orienta-
tion," and "no reasonable finder of fact could reach the conclusion that
he was discriminated against because he was a man."'22 The court gave
little weight to Bibby's argument that this ruling placed a special burden
on gay and lesbian plaintiffs to effectively prove that harassment directed
towards them was not based on anti-gay or anti-lesbian animus.23 The
court held that once a showing had been made that the harassment was
directed at the plaintiff because of his or her sex, it would be no defense
that the harassment may have also been partially motivated by the plain-
tiff's sexual orientation.24
The effect of the Third Circuit's decision was to foreclose any opportu-
nity for a gay or lesbian plaintiff to prevail under Title VII for anti-homo-
sexual harassment or discrimination. That is, the Third Circuit held that,
as a matter of law, anti-homosexual harassment is not discrimination be-
cause of sex, and is thus not actionable under Title VII. The Third Circuit
went too far; its opinion is indefensible in the face of Oncale and cases
like Price Waterhouse v. Hopkins,2 5 which have held that "sex-stereotyp-
ing" is harassment because of sex.
In Oncale, the Supreme Court held that there were three distinct situa-
tions in which same sex harassment may be considered harassment be-
cause of sex. 26 The first is where there is evidence that the harasser
16. Id. at 261.
17. Bibby, 260 F.3d at 261.
18. Id. (citing Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New
Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Williamson v. A.G. Edwards
& Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989)).
19. See Bibby, 260 F.3d at 261.
20. Id. at 264.
21. Id.
22. Id.
23. Id.
24. Id.
25. 490 U.S. 228 (1989).
26. See Oncale, 523 U.S. at 80-81.
2002] 1827
SMU LAW REVIEW
sexually desires the victim. 27 The second is found where there is no sex-
ual attraction, but where the harasser displays hostility to the presence of
a particular sex in the workplace.2 8 Third, the plaintiff may present evi-
dence that the harasser's conduct was motivated by a belief that the
plaintiff did not conform to the stereotypes of his or her gender.
29
This "gender stereotypes" method is based on Price Waterhouse. In
Price Waterhouse, the Supreme Court held that where the plaintiff had
been denied partnership at her accounting firm partly because the other
partners felt she was "macho," "masculine," and "needed a course in
charm school," the employer had engaged in illegal discrimination be-
cause of sex.3O Explaining its ruling the court stated that "[i]n the context
of sex stereotyping, an employer who acts on the basis of a belief that a
woman cannot be aggressive, or that she must not be, has acted on the
basis of gender."
'31
The Bibby court should have followed the lead of Price Waterhouse.
Price Waterhouse and its progeny provide strong support for the homo-
sexual plaintiff who is harassed because he is a "sissy," or she is "too
masculine."'32 Under the "gender stereotypes" jurisprudence a defendant
who exhibits anti-gay animus would violate Title VII to the extent that
the animus is based on a belief that the plaintiffs personal characteristics
or lifestyle do not fit with the defendant's stereotypical view of maleness
and femaleness. 33 Indeed, Bibby even produced evidence that his har-
asser called him a "sissy." Comments like these are part and parcel of
anti-gay harassment. The Third Circuit erred in failing to make that con-
27. Id. at 80. For example, when a gay or lesbian supervisor treats an employee in a
way that is sexually charged, it is reasonable to infer that the harasser acts as he or she does
because of the victim's sex. Bibby, 260 F.3d at 262.
28. Oncale, 523 U.S. at 80 (stating that same-sex sexual harassment could be found "if
a female victim is harassed in such sex specific and derogatory terms by another woman as
to make it clear that the harasser is motivated by general hostility to the presence of wo-
men in the workplace"). "For example, a woman chief executive officer of an airline might
believe that women should not be pilots and might treat women pilots with hostility
amounting to harassment. Similarly, a male doctor might believe that men should not be
employed as nurses, leading him to make harassing statements to a male nurse with whom
he works." Bibby, 260 F.3d at 262.
29. See Oncale, 523 U.S. at 80-81.
30. See id. at 250.
31. Id.
32. See Doe v. City of Belleville, 119 F.3d 563, 580-81 (7th Cir.1997) (holding that
where co-workers verbally and physically harassed a young man because he wore an ear-
ring, repeatedly asked him whether he was a girl or a boy, and threatened to assault him
sexually, he presented sufficient evidence to support a conclusion that the harassment
amounted to discrimination because of sex).
33. Unfortunately, courts have been very reluctant to rule either way on whether a
homosexual may prevail under Title VII for harassment caused by anti-gay animus. See
Simonton, 232 F.3d at 37 (discussion of the theory, but declining to rule on it because the
plaintiff had not raised it before the district court); Shermer v. ill. Dep't of Trans., 171 F.3d
475, 478 (7th Cir. 1999) (discussion of the theory, but declining to rule on it because the
plaintiff did not raise the sexual stereotyping argument at the district court level or in his
pleadings.); Higgins, 194 F.3d at 259-60 (declining to rule on the theory because it had been
waived by the plaintiff.).
1828 [Vol. 55
WINKELMAN CASE NOTE
nection, and seriously treating Bibby's case as a "sexual stereotypes"
case.
In sum, though it gave cursory treatment to Price Waterhouse,34 the
Bibby court summarily ignored it, and incorrectly held that anti-gay har-
assment, as a matter of law, is not harassment because of sex. Certainly,
such a holding clearly, and incorrectly, rejects the Title VII "gender ste-
reotypes" jurisprudence.
The Third Circuit was also incorrect when it surmised that its ruling
would not place an extra burden on gay and lesbian plaintiffs bringing an
action for same-sex sexual harassment. Because the court has foreclosed
any opportunity for the plaintiff to bring an action for anti-gay harass-
ment under the "gender stereotypes" jurisprudence, a homosexual plain-
tiff must prove harassment because of sex, via one of the other two routes
outlined in Oncale. Indeed, under this standard the feminine heterosex-
ual male or masculine heterosexual woman fares a much better chance of
prevailing under Title VII, than does a homosexual.
35
Finally, consider the dissent in Rene v. MGM Grand Hotel.36 In Rene,
the Ninth Circuit held that a homosexual male employee had not
presented a case of sexual harassment under Title VII where his only
evidence included harassment based on anti-gay animus.37 Dissenting,
Judge Nelson felt that while "gay-baiting insults and teasing are not ac-
tionable under Title VII, a line is crossed when the abuse is physical and
sexual."'38 Thus, Judge Nelson would find discrimination because of sex
where the abuse is physical with sexual overtones.
39
The abuse doled out in Rene was similar to that in Bibby.40 The Bibby
court wholly failed to analyze Bibby's case under the first prong of On-
cale-the sexual desire test. This failure was in error. Bibby's abuse
could very well have been motivated by the homosexual desires of a het-
erosexual man. Bibby's attacker "may have targeted him for sexual plea-
sure, as an outlet for rage, as a means of affirming [his] own
heterosexuality, or any combination of a myriad of factors."'41 In sum,
the effect was to humiliate Bibby as a man, 42 not a homosexual. This
type of abuse is certainly actionable under Title VII.
The Third Circuit is, unfortunately, representative of the general senti-
ment in this area of Title VII jurisprudence. While many courts express
34. The court simply outlined the law in that area, but gave no real consideration to
applying it to Bibby's case.
35. See, e.g., Doe, 119 F.3d at 581 ("[A] man who is harassed because his voice is soft,
his physique is slight, his hair is long, or because in some other respect he exhibits mascu-
linity in a way that does not meet his coworkers' idea of how men are to appear and
behave, is harassed because of his sex.").
36. 243 F.3d 1206 (9th Cir. 2001).
37. See id. at 1209-10.
38. Id. at 1211 (Nelson, J., dissenting).
39. See id.
40. Both men were pushed up and pinned against walls.
41. Rene, 243 F.3d at 1211 (Nelson, J., dissenting).
42. See id.
20021 1829
SMU LAW REVIEW
sympathy for homosexual plaintiffs who have been harassed because of
anti-gay sentiment, they have been reluctant find for them. 43 This is un-
necessary. Though it might take another decision of the Supreme Court
to clarify the point, Price Waterhouse, through its endorsement of "sex
stereotype" jurisprudence, allows a cause of action for anti-gay harass-
ment under Title VII.
43. Rene, 243 F.3d at 1209 ("The degrading and humiliating treatment Rene contends
he received from his fellow workers is appalling, and is conduct that is most disturbing to
this court. However, this type of discrimination, based on sexual orientation, does not fall
within the prohibitions of Title VII.").
1830 [Vol. 55
Index
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Bibby v. Philadelphia Coca-Cola Bottling Co. and Same-Sex Sexual Harassment in the Workplace: The Third Circuit Forecloses the Possibility of Equal Treatment for Homosexuals under Title VII

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