Same-Sex Sexual Harassment: How the Equal Opportunity Harasser Became a Legitimate Defense

This article provides a quick history of sexual-harassment law and looks at the appellate-court opinions that came before the U.S. Supreme Court ruling in a same-sex sexual-harassment case. That latter decision has given rise to the relatively novel equal-opportunity-harasser defense, whereby harassing conduct directed at both men and women, no matter how outrageous, may not be unlawful at all. The reason is that the Supreme Court previously established that sexual harassment must be because of sex, and failure to prove that gender-related component will automatically disqualify claims for quid pro quo or hostile-work-environment sexual harassment, as indicated by the court decisions outlined in this article. The preferred remedy to the equal-opportunity-harasser defense is to make unwelcome workplace sexual conduct per se unlawful