Sexual harassment is a prevalent problem in the American workplace that accounts for nearly sixty-four percent of all gender discrimination claims under Title VII. The equal-opportunity-harasser defense allows harassers who target both males and females to escape liability. Courts have allowed the defense because they have interpreted the "because of sex" element of a sexual harassment claim to require disparate treatment or a showing that the plaintiffs would not have been harassed if they were members of the opposite sex. An equal-opportunity harasser harasses both sexes and, therefore, plaintiffs cannot prove disparate treatment. This Comment argues that the disparate-treatment requirement does not fit the sexual harassment model because it is a class-based analysis and sexual harassment is an individual-based discrimination. By limiting analysis of equal-opportunity-harasser claims to disparate treatment, courts allow sexual inequality in the workplace to continue, undermining the purpose behind sexual harassment laws. To rectify this situation, the courts should adopt an individual analysis of the "because of sex" element, which a recent U.S. Supreme Court decision allows. Adoption of an individual analysis will follow current trends in federal and Washington state courts to limit applicability of the defense and will enable courts to deny the equal-opportunity-harasser defense.
Notes and Comments,
Two Wrongs Do Not Make a Defense: Eliminating the Equal-Opportunity-Harasser Defense,
76 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol76/iss2/9