her. Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1272 (D.C. Cir. 1987).
The District of Columbia attempts to seize upon Williams' failure to allege a specific policy or custom. However, such failure is no longer fatal to a Section 1983 claim when attacked in a motion to dismiss. Atchinson v. District of Columbia, et al., 315 U.S. App. D.C. 318, 73 F.3d 418, 1996 U.S. App. LEXIS 587, *9 (D.C. Cir. 1996); see also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (rejecting heightened pleading requirements for Section 1983 complaints). Williams "need not allege all that [she] must eventually prove," Atchison, slip. op. at 6, and a complaint that fails to include that which she has not yet been provided an opportunity to discover cannot be fatally defective. The motion to dismiss Count III will be denied.
C. The Title VII claim.
Finally, the District of Columbia attacks Williams' Title VII claim in Count I of her complaint. In a single paragraph, relying solely upon a decision by the U.S. Court of Appeals for the Eighth Circuit, the District of Columbia summarily concludes that Title VII does not apply to cases involving sexual harassment by a supervisor of the same sex. See Motion to Dismiss, supra. at 5 (citing Williamson v. A.G. Edwards & Sons Inc., 876 F.2d 69 (8th Cir. 1989)). In opposition, Williams argues that her claim of sexual harassment falls within Title VII's prohibition of discrimination based upon gender: Anderson harassed her because of her gender, affecting the terms and conditions of her employment, and causing her injury. See Plaintiff's Opposition, supra, at 10-11.
Title VII makes it unlawful for an employer "to discriminate against an individual with respect to [her] compensation, terms, conditions or privileges of employment, because of such individual's . . . sex" 42 U.S.C. § 2000e-2 (emphasis added). The text of this statute is gender neutral and contains no suggestion that the sex of either gender is a prerequisite to maintaining a claim under Title VII. Moreover, in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), the Supreme Court emphasized that "the phrase 'terms, conditions, privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Id. at 64, 108 S. Ct. at 2404. Later in Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1994), Justice Ginsburg explained that "the critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at , 114 S. Ct. at 372 (Ginsburg, J., concurring).
Simply put, Title VII broadly prohibits all forms of sex discrimination, which includes sexual harassment. Contrary to the conclusory statements offered as argument, Title VII makes no distinction based upon sexual orientation: the determinative question is not the orientation of the harasser, but whether the sexual harassment would have occurred but for the gender of the victim. 42 U.S.C. § 2000e-2(a)(1) (prohibiting an employer from discriminating against an individual "because of such individual's sex") (emphasis added); See Bundy v. Jackson, 205 U.S. App. D.C. 444, 641 F.2d 934, 942 n.7 (D.C. Cir. 1981).
Relying solely upon a decision by the Eighth Circuit, the defendant has failed to mention the considerable weight of authority in which federal courts have held directly, implied, or stated in dicta that same-sex sexual harassment is actionable under Title VII. E.g., Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995); Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 148 (2d Cir. 1993) (Van Graafeiland, J., concurring), cert. denied, 510 U.S. 1164, 127 L. Ed. 2d 539, 114 S. Ct. 1189 (1994); Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 192-93 (1st Cir. 1989); Bundy, 641 F.2d at 942 n.7; Barnes v. Costle, 183 U.S. App. D.C. 90, 561 F.2d 983, 990 n.55 (D.C. Cir. 1977); Easton v. Crossland Mortgage Corp., 905 F. Supp. 1368, 1378-79 (C.D. Cal. 1995); Ecklund v. Fuisz Technology, Ltd, 905 F. Supp. 335, 337-39 (E.D. Va. 1995); Blozis v. Mike Raisor Ford, 896 F. Supp. 805, 806, 68 Fair Empl. Prac. Cas. (BNA) 711, 712-13 (N.D. Ind. 1995); Raney v. District of Columbia, 892 F. Supp. 283, 286-88 (D.D.C. 1995); Nogueras v. University of Puerto Rico, 890 F. Supp. 60, 62-63 (D.P.R. 1995); Griffith v. Keystone Steel & Wire, 887 F. Supp. 1133, 1135 (M.D. Tenn. 1995); EEOC v. Walden Book Co., 885 F. Supp. 1100, 1103 (M.D. Tenn. 1995); Prescott v. Independent Life & Accident Ins. Co., 878 F. Supp. 1545, 1549-51 (M.D. Ala. 1995); McCoy v. Johnson Controls Servs., Inc., 878 F. Supp. 229, 231-32 (S.D. Ga. 1995); Polly v. Houston Lighting and Power Co., 825 F. Supp. 135, 137 (S.D. Tex. 1993); Marrero-Rivera v. Department of Justice, 800 F. Supp. 1024, 1027 (D.P.R. 1992), aff'd 36 F.3d 1089 (1st Cir. 1994); Joyner v. AAA Cooper Transportation, 597 F. Supp. 537, 542 (M.D. Ala. 1983), aff'd, 749 F.2d 732 (11th Cir. 1984); Wright v. Methodist Youth Servs., Inc., 511 F. Supp. 307, 310 (N.D. Ill. 1981); see also Ton v. Information Resources, 1996 U.S. Dist. LEXIS 51, 1996 WL 5322, at *5-6 (N.D. Ill., Jan. 3, 1996); Sardinia v. Dellwood Foods, Inc., 1995 U.S. Dist. LEXIS 16073, 1995 WL 640502, at *6 (S.D.N.Y., Oct. 30, 1995); King v. M.R. Brown, Inc., 911 F. Supp. 161, 1995 U.S. Dist. LEXIS 14211, 1995 WL 574308, at *5-6 (E.D. Pa., 1995); Pritchett v. Sizeler Real Estate Mgt. Co., 1995 U.S. Dist. LEXIS 5565, 1995 WL 241855, at *2, 67 Fair Empl. Prac. Cas. (BNA) 1377, 1378-79 (E.D. La., Apr. 25, 1995); Boyd v. Vonnahmen, 1995 U.S. Dist. LEXIS 7542, 1995 WL 420040, at *3 (S.D. Ill., Mar. 29, 1995); Roe v. K-Mart Corp., 1995 U.S. Dist. LEXIS 18211, 1995 WL 316783, at *2 (D.S.C., Mar. 28, 1995).
The defendant's reliance upon Williamson for authority is misplaced, because this case does not, in fact, stand for the proposition that same-sex sexual harassment is beyond the reach of Title VII. In Williamson, the Eighth Circuit simply stated that "Title VII does not prohibit discrimination against homosexuals." 876 F.2d at 70. Whether the Williamson court is correct
is beside the point: its holding simply has nothing to do with the issue presented by Williams' case. There has been no claim here that Williams was discriminated against because of her orientation, which appears to have been the issue before the Eighth Circuit in Williamson. The question presented here is simply whether the plaintiff was harassed because of her gender.
Although the authority upon which the defendant would rely is inapposite, other federal courts have found that same-sex sexual harassment is beyond the reach of Title VII. E.g., Garcia v. Elf Atochem N. Am., 28 F.3d 446, 451-52 (5th Cir. 1994); Fredette v. BVP Management Associates, 905 F. Supp. 1034, 1037 (M.D. Fla. 1995); Mayo v. Kiwest Corp, 898 F. Supp. 335, 337 (E.D. Va. 1995); Ashworth v. Roundup Co., 897 F. Supp. 489, 494 (W.D. Wash. 1995); Benekritis v. Johnson, 882 F. Supp. 521, 525-26 (D.S.C. 1995); Myers v. City of El Paso, 874 F. Supp. 1546, 1548 (W.D. Tex. 1995); Hopkins v. Baltimore Gas & Elec. Co., 871 F. Supp. 822, 831-35 (Md. 1994); Vandeventer v. Wabash Nat'l Corp., 867 F. Supp. 790, 796 (N.D. Ind. 1994). Cf. McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191, 1996 WL 10280, at *3 (4th Cir., 1996) (heterosexual-male-on-heterosexual-male harassment involving "horseplay" of a sexual nature not protected by Title VII). However, these courts all rely, directly or indirectly, upon the reasoning of Goluszek v. H.P. Smith, 697 F. Supp. 1452 (N.D. Ill. 1988), which reasoning this Court cannot accept. Without citing to the statute or case law, or even to the underlying congressional history of Title VII, the Goluszek court concluded that Congress concern in enacting Title VII was about abuses stemming from an imbalance of power "which results in discrimination against a discrete and vulnerable group." Goluszek, 697 F. Supp. at 1456 (citing solely to a 1984 student law review note). This Court agrees with Judge Preska, who, in Sardinia v. Dellwood Foods, Inc., 1995 U.S. Dist. LEXIS 16073, 1995 WL 640502, 64 U.S.L.W. 2329, 67 Empl. Prac. Dec. (CCH) P43,784, No. 94-C-5458 (S.D.N.Y., Oct. 30, 1995), pierced Goluszek's reasoning.
Judge Preska cited at least seven analytical problems underlying Goluszek. First, the support underlying its central proposition came not from Congress, but from a law student. Id. at *4.
Second, the student note was written long before the Supreme Court even handed down Meritor Savings Bank. Id. Third, as Judge Preska noted, "there is nothing in the language of Title VII to support a finding that same-sex harassment is not prohibited. . . . On the contrary, the language of the statute is non-exclusive, creating a broad rule of workplace equality. Title VII makes discrimination at the workplace on the basis of gender illegal, period." Id. at *5. Fourth, Goluszek departs from Meritor's clear command that "when a supervisor sexually harasses a subordinate because of the subordinate's sex, the supervisor discriminates on the basis of sex." Id. (citation and internal quotes omitted). Fifth, "courts since Meritor have found it untenable to allow reverse discrimination cases but not same-sex sexual harassment cases to proceed under Title VII." Id. (quoting EEOC v. Walden Book Co, 885 F. Supp. 1100, 1103 (M.D. Tenn. 1995) and citing McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976)). Sixth, the EEOC's guidelines, upon which the Supreme Court heavily relied in Meritor Savings Bank, adopt the requirements that "(1) actionable discrimination be based on the victim's sex, or gender, as opposed to the victim's sexual orientation; and that (2) the harasser does not treat employees of the opposite sex (from the victim) the same way." Id. (citing EEOC Compliance Manual § 615.2 (1981)).
Seventh, and last, the harms resulting from same-sex sexual harassment are no less severe than those perpetrated by harassers of the opposite sex. Id.
Even if Goluszek's reasoning were sound, however, it would not undermine Williams' Title VII claim. The reasoning underlying Goluszek is that Title VII's purpose is to prohibit sexual harassment based upon the abuse of a supervisor's power. The court in Goluszek rejected same-sex sexual harassment, because the situation presented in Goluszek, involving male co-worker harassers and a male victim, did not involve an abuse of power. But even if that were so in Goluszek, it is not true that all same-sex sexual harassment scenarios do not involve an abuse of power by a supervisor over an employee. The facts in Williams' case fall squarely within the abuse of power rationale that the Goluszek court and its progeny apparently believe to be the underpinning of Title VII. The facts alleged by Williams fall even more squarely within the contours of sexual harassment law as defined by the Supreme Court: "Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Meritor Savings Bank, 477 U.S. at 64, 108 S. Ct. at 2404.
Absent compelling legislative history to the contrary, federal courts are obligated to apply statutes as written. Title VII, as written, protects victims of sexual harassment who are harassed because of their sex. There is no legislative history that suggests that victims of sexual harassment must be sexually harassed by harassers of the opposite sex before they may invoke the protections of Title VII. Had Congress intended to insulate sexual harassers from liability as long as those sexual harassers selected their victims carefully, not only should Congress have spoken more clearly, it could have at least said something.
If the specific text of Title VII, its legislative history and underlying purpose, the general weight of authority and plain logic are not enough to make clear that the protections of Title VII extend to victims of sexual harassment like Williams, this Circuit has so stated, even if it has not squarely held. See Bundy, 641 F.2d at 942 n.7; Barnes, 561 F.2d at 990 n.55 (D.C. Cir. 1977); see also Raney, 892 F. Supp. at 286-88; Ryczek v. Guest Services Inc., 877 F. Supp. 754, 761 & n.6 (D.D.C. 1995).
In this case, Williams has alleged sufficient facts, assumed to be true, to support both her hostile environment and quid pro quo sexual harassment claims. Whether Williams' supervisor is male or female, the nature of the allegations, assumed to be true when attacked by a motion to dismiss, lead to one conclusion: but for Williams' gender, Anderson would not have sexually harassed her. Conduct like that of Anderson's alleged sexual harassment is prohibited by Title VII. The motion to dismiss will be denied.
Accordingly, for the reasons stated above, it is
ORDERED that the defendant's motion to dismiss is granted in part and denied in part; it is
FURTHER ORDERED that the defendant's motion is granted as to Counts II, IV, V and VI; and it is
FURTHER ORDERED that the motion is denied as to Counts I and III; and it is
FURTHER ORDERED that a status conference is set for Wednesday, March 6, 1996, at 9:15 a.m.
IT IS SO ORDERED.
February 5, 1996.
JOYCE HENS GREEN
United States District Judge