The full case caption appears at the
end of this opinion. Manion, Circuit Judge. In their Title VII suitfiled in federal court, Steven and Karen Holmanalleged that their supervisor at the IndianaDepartment of Transportation had sexuallyharassed each of them individually and onseparate occasions, and because they had rejectedhis sexual solicitations the supervisorretaliated against each of them with certaindeprivations. The district court held that theHolmans’ complaint of an “equal opportunityharasser” failed to state a claim of sexdiscrimination under Title VII. See Holman v.State of Indiana, 24 F. Supp.2d 909, 915 (N.D.Ind. 1998) (denying plaintiffs’ motion forreconsideration). Because the complaintspecifically and unequivocally claimed that thesame supervisor had been sexually harassing themale and female plaintiffs by soliciting sex fromeach on separate occasions and then hadretaliated against each, we affirm the districtcourt. I. Background Steven and Karen Holman are married and bothwork in the maintenance department at the IndianaDepartment of Transportation (IDOT). On May 21,1997, they filed this action against the State ofIndiana and the IDOT under Title VII of the CivilRights Act of 1964 (as amended), 42 U.S.C. sec.2000e et seq., and the Equal Pay Act (EPA), 29U.S.C. sec. 206(d).
[FOOTNOTE 1] In paragraph 4(b) of thecomplaint, Karen alleged that “[s]ince Decemberof 1995,” her male shop foreman, Gale Uhrich,”began sexually harassing [her] by touching herbody, standing too closely to [her], asking herto go to bed with him and making sexist commentsand otherwise making [her] work in a sexuallyhostile work environment.” Holman, 24 F. Supp.2dat 911. In paragraphs 4(c) and 4(d), she alsoalleged that when she rebuffed and protestedUhrich’s “sexual propositions,” he retaliatedagainst her, and that she “has been denied equalpay for equal work.” Id. In paragraph 6(b) of thecomplaint, Steven similarly alleged that “sinceAugust of 1995″ Uhrich, who was also his foreman,”had sexually harassed [him] by grabbing his headwhile asking for sexual favors which requestswere refused.” Id. And in paragraph 6(c), Steven,too, alleged that Uhrich retaliated against himboth for “refusing to ‘give-in’ to [Uhrich's]request for sexual favors” and “as a result ofhis affiliation with his wife, Karen L. Holman,who filed [internal] sexual harassment chargesagainst Uhrich.” Id. In paragraphs 5 and 7, bothKaren and Steven sought compensatory damagesunder Title VII for the lost income, mentalanguish, and stress they had suffered as a resultof Uhrich’s “sexual harassment and retaliation.”(Karen also sought damages under the EPA forbeing paid “less money than similarly situatedmales.” Complaint, para.5.) The IDOT moved to dismiss the Holmans’ Title VIIsexual harassment claims under Fed. R. Civ. P.12(b)(6). On September 8, 1997, the districtcourt granted the motion, holding that “becauseboth plaintiffs were alleging sexual harassmentby the same supervisor, they both, as a matter oflaw, could not prove that the harassment occurred’because of sex.’” Holman, 24 F. Supp.2d at 910.The Holmans moved the district court toreconsider its order in light of Oncale v.Sundowner Offshore Services, Inc., 523 U.S. 75(1998). See Holman, 24 F. Supp.2d at 910. Thecourt denied the “motion for reconsideration withrespect to the argument that Oncale altered [its]prior ruling,” but it took its prior order underadvisement and ordered supplemental briefing sothe parties could address cases “which containedlanguage” that supported the Holmans’ argumentthat they both “could maintain a cause of actionfor sexual harassment.” Id. After thoroughlysurveying the applicable law, the district courtdenied the Holmans’ motion for reconsiderationand reinstated its order dismissing their sexualharassment claims. Id. at 916. Because theHolmans’ retaliation and equal pay claimsremained, the court certified its dismissal oftheir harassment claims pursuant to Fed. R. Civ.P. 54(b). See Granack v. Continental Cas. Co.,977 F.2d 1143, 1144-45 (7th Cir. 1992).
[FOOTNOTE 2] TheHolmans appeal the dismissal of this claim, andwe have jurisdiction over it under 28 U.S.C. sec.1291 as a final decision. See King v. Gibbs, 876F.2d 1275, 1277 (7th Cir. 1989). The EqualEmployment Opportunity Commission (EEOC) appearsas amicus curiae in support of the Holmans. II. Discussion We review de novo a dismissal of a claim underRule 12(b)(6), accepting as true all factsalleged in the complaint and drawing allreasonable inferences from them in theplaintiff’s favor. Ledford v. Sullivan, 105 F.3d354, 356 (7th Cir. 1997). “We will affirm thedismissal of a complaint if ‘it is clear that norelief could be granted under any set of factsthat could be proved consistent with the allegations.’”Id. (quoting Hishon v. King & Spalding, 467 U.S.69, 73 (1984)). A. Title VII’s Requirement ofDiscrimination and the “Equal OpportunityHarasser” Title VII of the Civil Rights Act of 1964, asamended, prohibits discrimination on the basis ofsex: “It shall be an unlawful employment practicefor an employer to fail or refuse to hire or todischarge any individual or to otherwisediscriminate against any individual with respectto his compensation, terms, conditions, orprivileges of employment, because of suchindividual’s . . . sex.” 42 U.S.C. sec. 2000e-2(a)(1). The purpose of this provision is toprevent “‘disparate treatment of men and women inemployment,’” regardless of its form. Oncale, 523U.S. at 78 (quoting Meritor Savings Bank, FSB v.Vinson, 477 U.S. 57, 64 (1986)). Whenever,therefore, “‘the workplace is permeated withdiscriminatory intimidation, ridicule, and insultthat is sufficiently severe or pervasive to alterthe conditions of the victim’s employment andcreate an abusive working environment, Title VIIis violated.’” Id. (emphasis added) (quotingHarris v. Forklift Systems, Inc., 510 U.S. 17, 21(1993)). In Oncale, the Supreme Court reiterated that”Title VII’s prohibition of discrimination’because of . . . sex’ protects men as well aswomen,” id., and it held that this prohibitionapplies to the same-sex harasser, whether or notthat harasser is motivated by sexual desire. Seeid. at 79-80 (“If our precedents leave any doubton the question, we hold today that nothing inTitle VII necessarily bars a claim ofdiscrimination ‘because of . . . sex’ merelybecause the plaintiff and the defendant . . . areof the same sex.”). In doing so, it underscoredthat the touchstone of Title VII is, of course,discrimination or disparate treatment. Oncale–although a unanimous decision, only a few pageslong–said so no less than four times, id. at 79-81 and more than once with emphasis. See id. at80 (“Title VII does not prohibit all verbal orphysical harassment in the workplace; it isdirected only at ‘discrimina[tion] . . . becauseof . . . sex.’”) (emphasis added). Indeed,Justice Thomas specifically (and pointedly, quitebriefly) concurred to highlight that premise: “Iconcur because the Court stresses that in everysexual harassment case, the plaintiff must pleadand ultimately prove Title VII’s statutoryrequirement that there be discrimination ‘becauseof . . . sex.’” Id. at 82. The Court explicated what it meant by”discrimination” in sexual harassment cases; itis to be determined on a gender-comparativebasis: “The critical issue, Title VII’s textindicates, is whether members of one sex areexposed to disadvantageous terms or conditions ofemployment to which members of the other sex arenot exposed.” Id. at 80 (emphasis added) (quotingHarris, 510 U.S. at 25 (Ginsburg, J.,concurring)). This inquiry applies to both same-and opposite-sex harassment. Id. at 80-81 (“Asame-sex harassment plaintiff may also, ofcourse, offer direct comparative evidence abouthow the alleged harasser treated members of bothsexes . . . .”). “Whatever evidentiary route theplaintiff chooses to follow, he or she mustalways prove that the conduct at issue . . .actually constituted ‘discrimina[tion] . . .because of . . . sex.’” Id. at 81 (emphasis inoriginal). Thus a violation of Title VII onlyoccurs because of sex discrimination. Both before and after Oncale, we have noted thatbecause Title VII is premised on eliminatingdiscrimination, inappropriate conduct that isinflicted on both sexes, or is inflictedregardless of sex, is outside the statute’sambit. Title VII does not cover the “equalopportunity” or “bisexual” harasser, then,because such a person is not discriminating onthe basis of sex. He is not treating one sexbetter (or worse) than the other; he is treatingboth sexes the same (albeit badly). See Pasqua v.Metropolitan Life Ins. Co., 101 F.3d 514, 517(7th Cir. 1996) (“Harassment that is inflictedwithout regard to gender, that is, where malesand females in the same setting do not receivedisparate treatment, is not actionable becausethe harassment is not based on sex.”); Shepherdv. Slater Steels Corp., 168 F.3d 998, 1011 (7thCir. 1999) (“Although we readily acknowledge thatthe factfinder could infer from such evidencethat Jemison’s harassment was bisexual andtherefore beyond the reach of Title VII . . ..”); see also Henson v. City of Dundee, 682 F.2d897, 904 (11th Cir. 1982) (“There may be cases inwhich a supervisor makes sexual overtures toworkers of both sexes or where the conductcomplained of is equally offensive to male andfemale workers. In such cases, sexual harassmentwould not be based on sex because men and womenare accorded like treatment . . . . [and] theplaintiff would have no remedy under TitleVII.”). As a result, the unfortunate objects ofsuch harassment may be limited to state law for aremedy. See Johnson v. Hondo, Inc., 125 F.3d 408,410 (7th Cir. 1997) (besides Title VII sexualharassment claim, plaintiff alleged five statelaw causes of action, including assault, battery,and intentional infliction of emotionaldistress); Henson, 682 F.2d at 904. The Holmans do not really address Oncale’semphasis on the statutory requirement ofdiscrimination. And amicus EEOC candidly admitsthat under Pasqua and Shepherd, this circuit doesnot recognize Title VII sexual harassment claimsin the case of the “equal opportunity” harasser.Instead, both say that exempting the “equalopportunity” harasser from Title VII would be ananomalous result and bad policy (it would, theyargue, encourage harassers to manufacture asecond harassment of a different sex so theycould insulate themselves from Title VIIliability). They cite pre-Oncale decisions,including one vacated by the Supreme Court, Doeby Doe v. City of Belleville, Ill., 119 F.3d 563(7th Cir. 1997), vacated and remanded in light ofOncale, 523 U.S. 1001 (1998). Those cases reciteor suggest the same policy complaint. SeeMcDonnell v. Cisneros, 84 F.3d 256, 260 (7th Cir.1996) (“It would be exceedingly perverse if amale worker could buy his supervisors and hiscompany immunity from Title VII liability bytaking care to harass sexually an occasional maleworker, though his preferred targets werefemale.”). We do not think, however, that it is anomalousfor a Title VII remedy to be precluded when bothsexes are treated badly. Title VII is predicatedon discrimination. Given this premise, requiringdisparate treatment is consistent with thestatute’s purpose of preventing such treatment.Oncale, 523 U.S. at 78 (congressional intent isto prevent “disparate treatment of men and womenin employment.”). It is likewise consistent withthe statute’s plain language. See 42 U.S.C. sec.2000e-2(a)(1) (“It shall be an unlawfulemployment practice . . . to otherwisediscriminate . . . .”). If anything, it would beanomalous not to require proof of disparatetreatment for claims of sex discrimination (ofwhich sexual harassment is a subset), yet that isessentially what the Holmans urge. To do so wouldchange Title VII into a code of workplacecivility, and the Supreme Court has alreadyrejected such an interpretation of Title VII. InOncale, the Court in fact explained that one wayto ensure that Title VII does not mutate from aprohibition on sexual discrimination to a generalprohibition on harassment is to be faithful tothe statute’s plain language, and by that itmeant requiring a demonstration that there bedifferent treatment of the sexes. But that risk . . . is adequately met by carefulattention to the requirements of the statute.Title VII does not prohibit all verbal orphysical harassment in the workplace; it isdirected only at “discriminat[ion] . . . becauseof . . . sex.” . . . “The critical issue, TitleVII’s text indicates, is whether members of onesex are exposed to disadvantageous terms orconditions of employment to which members of theother sex are not exposed.” 523 U.S. at 80 (emphasis in original) (quotingHarris, supra).
[FOOTNOTE 3] Furthermore, the Holmans’ theory that sexualharassers will attempt to insulate themselves andtheir employers from liability by purposelyharassing members of both sexes in order todisguise their real intent seems unrealistic. Itis hard to imagine that would-be harassers willknow the intricacies of sexual harassment law andwill manufacture additional harassments toattempt to avoid Title VII liability,particularly when doing so will increase theirrisk of being fired, sued under state law, andostracized. Surely attorneys will not advisetheir employer-clients to instruct theiremployees to harass still more people–to commit,in most cases, state law torts–which couldsubject their clients to lawsuits and themselvesto claims of malpractice and charges ofprofessional misconduct. Moreover, if attorneyswere actually to dispense such incredible advice,and their clients were to follow it, the clientswould still be subject to Title VII liability. Insuch cases the harasser is not a bona-fide “equalopportunity” harasser; he is manufacturinganother harassment to avoid Title VIIliability.
[FOOTNOTE 5] These extreme hypotheticals aside, the Holmansand the EEOC still express public policy concernsthat “authentic” bisexual or equal-opportunityharassers are not covered by Title VII. But it isfor Congress to decide whether to address badworkplace behavior that cannot be labeleddiscriminatory. It is not the province of federalcourts to expand the language of a statute thatis clearly limited. Title VII covers only sexdiscrimination. B. The Holmans’ Sexual Harassment Claims The district court dismissed the Holmans’ sexualharassment claims, concluding that the Holmanscould not claim discrimination because they hadalleged that their supervisor had been sexuallyharassing both of them by soliciting sex fromeach of them. Thus, applying Oncale, the districtcourt reasoned that “neither was subjected todisadvantageous terms or conditions of employmentto which members of the other sex were notexposed.” Holman, 24 F. Supp.2d at 915. We agree. The Holmans seem to assert that even if TitleVII does not cover the “equal opportunity”harasser, the district court erred in dismissingtheir sexual harassment claims because it ispossible, under some set of facts, for at leastone of them to maintain a claim for sexualharassment. They do not explain, however, how oneof them could do so under the present allegationsthat Uhrich had been sexually harassing both ofthem by sexually propositioning each of them, andthus was not discriminating against either ofthem. We accept the complaint at its face valueand will not speculate over how it could havesome other meaning. See Liu v. T&H Machine, Inc.,191 F.3d 790, 795 (7th Cir. 1999) (“we are notobligated to guess at a party’s meaning, however,and arguments insufficiently developed on appealare waived.”).
[FOOTNOTE 5] The Holmans contend that under Rule 12(b)(6),their sexual harassment claims cannot bedismissed unless it is impossible to establish aclaim under any set of facts. But the Holmansonly have it half right. While their claims maynot be dismissed under Rule 12(b)(6) unless theycannot prove a claim under any set of facts,those facts must be consistent with theallegations of the complaint. Hishon, 467 U.S. at73. Thus, while the Holmans can allege(hypothesize) new facts on appeal, such facts areirrelevant if not consistent with the complaint.Stevens v. Umsted, 131 F.3d 697, 705 (7th Cir.1997) (“This court has held that when reviewingRule 12(b)(6) motions, we will consider newfactual allegations raised for the first time onappeal provided they are consistent with thecomplaint.”). Accord American Inter-FidelityExchange v. American Re-Insurance Co., 17 F.3d1018, 1022 (7th Cir. 1994); Dawson v. GeneralMotors Corp., 977 F.2d 369, 372 (7th Cir. 1992).Because the complaint clearly pleaded that Uhrichhad been separately sexually harassing both Karenand Steven by propositioning them, it isinconsistent (and thus improper) for the Holmansnow essentially to propose that he did not.
[FOOTNOTE 6] Similarly, every new scenario amicus EEOCproposes contradicts the Holmans’ allegations andassumes that Uhrich did not really sexuallyharass either Steven or Karen. For example, theEEOC argues that the facts could show that Uhrichharassed Karen out of spite because he wasjealous of her relationship with her husband(with whom Uhrich really wanted to have sexualrelations) and thus was not really an “equalopportunity” harasser. But speculating thatUhrich propositioned and accosted Karen Holmanbecause she was married or loyal to her husband,is inconsistent with the complaint, which allegesthat Uhrich “sexually harassed” her “in violationof Title VII,” which, by definition, simply meansthat he harassed her because she was a woman. See42 U.S.C. sec. 2000e-2(a)(1); see also Sweeney v.West, 149 F.3d 550, 555 (7th Cir. 1998); Scusa v.Nestle U.S.A. Co., Inc., 181 F.3d 958, 965 (8thCir. 1999). The EEOC cannot essentially “amendthe complaint on appeal to state a new claim . .. .” American Inter-Fidelity Exchange, 17 F.3d at1022; see also Dawson, 977 F.2d at 372-373 (“Ofcourse, a plaintiff may not argue on appeal thata contract consisted of Y when the complaintalleged that the contract consisted of X.”).
[FOOTNOTE 7] Additional discovery, then, would not save theHolmans’ sexual harassment claims. Their problemis that the allegations in their complaint arevery precise; the complaint simply and clearlysays that their supervisor was sexually harassingeach of them by asking for sexual favors. As amatter of law, then, neither of them has a claimfor discrimination under Title VII. NorthernTrust Co. v. Peters, 69 F.3d 123, 129 (7th Cir.1995) (“More is not necessarily better under theFederal Rules; a party ‘can plead himself out ofcourt by . . . alleging facts which . . .demonstrate that he has no legal claim.’”)(quoting Trevino v. Union Pacific R.R. Co., 916F.2d 1230, 1234 (7th Cir. 1990)). Recognizing the difficulty in which theircomplaint has placed them, the Holmans hopefullycontend that they have pleaded in thealternative–that they really have alleged thatUhrich harassed either Karen or Steven, but notboth of them. See Fed. R. Civ. P. 8(e)(2). Itshould be noted that this argument is at oddswith what they told us earlier in oralargument
[FOOTNOTE 8] and in their briefs.
[FOOTNOTE 9] Moreover, theHolmans did not make this argument in theirinitial appellate brief (in fact, they did notmake it until rebuttal at oral argument) and thusit is waived. See Lear, 2000 WL 291376, at *2.But assuming this argument were properlypresented, it is not possible, even by generouslyreading the complaint, to construe it as pleadingthe Holmans’ sexual harassment claims in thealternative. Schott Motorcycle Supply, Inc. v.American Honda Motor Co., Inc., 976 F.2d 58, 62(1st Cir. 1992) (Rule 8(e)(2) allows alternativeand hypothetical pleading. “Plaintiff’sassertion, however, . . . was not made in thecontext of an alternative or hypotheticalpleading.”). While the Holmans need not useparticular words to plead in the alternative,they must use a formulation from which it can bereasonably inferred that this is what they weredoing. See id. (citing 5 Wright & Miller, FederalPractice and Procedure sec. 1282 at 525 (2d ed.1990) (generally an alternative claim is draftedin the form of “either-or” and a hypotheticalclaim is in the form of “if-then”)). The “liberalconstruction accorded a pleading under Rule 8(f)does not require the courts to fabricate a claimthat a plaintiff has not spelled out in hispleadings.” 5 Wright & Miller, Federal Practiceand Procedure, sec. 1286 at 558 (2d ed. 1990),quoted in Schott, 976 F.2d at 62. And while wemust draw reasonable inferences in the Holmans’favor, we should not draw inferences that whiletheoretically plausible are inconsistent with thepleadings. Ledford, 105 F.3d at 356. Here, theHolmans did not attempt to plead in thealternative; they clearly pleaded in tandem. Bothclaimed, without equivocation, that Uhrichsexually harassed (and then retaliated against)each of them, and we cannot change that allegedfact. City Nat’l Bank of Fla. v. Checker, Simon &Rosner, 32 F.3d 277, 281 (7th Cir. 1994). III. Conclusion For the foregoing reasons, the order of thedistrict court dismissing the plaintiffs’ sexualharassment claims is AFFIRMED. EVANS, Circuit Judge, concurring. As JudgeManion correctly points out, our cases indicatethat the equal opportunity harasser may often notbe discriminating against either sex and, as weknow, discrimination is the essence of Title VII.We also have indicated that it might be possiblefor a plaintiff to show an exception: that theequal opportunity harasser engaged in such sexspecific and derogatory behavior as to reveal an”antipathy to persons of the plaintiff’s gender,”thus allowing for the possibility that aplaintiff could prove that an equal opportunityharasser was not harassing so equally after alland was, in fact, discriminating against one sexor the other. See Shepherd v. Slater SteelsCorp., 168 F.3d 998, 1008 (7th Cir. 1999). Iwrite separately only to note that therecognition of that possibility eliminates whatotherwise seems to be a troubling clash withOncale v. Sundowner Offshore Services, Inc., 118S. Ct. 998 (1998). The workplace in Oncale hadeight employees, all male. Nevertheless, thecourt concluded that it would be possible to findharassment– that it would be possible,therefore, to find discrimination. If”discrimination” is possible in a single-sexworkplace, it might also be possible in somecircumstances in which we find an equalopportunity harasser. Because this case comes tous on a complaint full of facts which revealUhrich to be a true equal opportunity harasser, Ijoin the opinion. :::FOOTNOTES:::
FN1 Although not raised by the parties, we assume theIDOT, and not the State of Indiana generally, has”actual hiring and firing responsibility” as tothe Holmans and is thus their “employer” forpurposes of Title VII. Hearne v. Board of Educ.of City of Chicago, 185 F.3d 770, 777 (7th Cir.1999) (“Title VII actions must be brought againstthe ‘employer.’ In suits against state entities,that term is understood to mean the particularagency or part of the state apparatus that hasactual hiring and firing responsibility.”). As aresult, the Holmans cannot maintain Title VIIclaims against the State of Indiana. Id. (holdingthat because “[n]either the Governor’s office,the State of Illinois as a whole, nor the IELRBis the ‘employer’ for Title VII purposes . . .the case against these defendants [is at anend].”).
FN2 The Eleventh Amendment does not bar the Holmans’Title VII claims. See Fitzpatrick v. Bitzer, 427U.S. 445, 448-449, 456 (1976); Velasquez v.Frapwell, 160 F.3d 389, 395 (7th Cir. 1998),vacated in part on other grounds, 165 F.3d 593,594 (7th Cir. 1999). Although not before us, wenote that the viability of Karen Holman’s EPAclaim, however, is now questionable in light ofKimel v. Florida Bd. of Regents, 120 S. Ct. 631,639, 650 (2000) (holding that the ADEA did notvalidly abrogate states’ Eleventh Amendmentimmunity). See Varner v. Illinois State Univ.,150 F.3d 706, 717 (7th Cir. 1998) (holding thatEPA abrogated Eleventh Amendment immunity),vacated and remanded in light of Kimel, 120 S.Ct. 928 (2000).
FN3 The other “requirement that prevents Title VIIfrom expanding into a general civility code” isinterpreting the statute not to “reach genuinebut innocuous differences in the ways men andwomen routinely interact . . . [I]t forbids onlybehavior so objectively offensive as to alter the’conditions’ of the victim’s employment.” Id. at81.
FN4 In this case, as we shall see, the Holmans areprecluded from making such an argument becausethey have alleged that Gale Uhrich sexuallyharassed each of them.
FN5 The closest the Holmans come is asserting intheir reply brief that had they “been permittedto do discovery, it may be unearthed that oneAppellant may have been the victim of sexualharassment while the other is a victim ofretaliation.” This argument was not properlypresented. United States v. Turner, 203 F.3d1010, 1019 (7th Cir. 2000) (arguments not raiseduntil reply brief are waived). But assuming itwere, the Holmans would be hypothesizing aboutfacts that are inconsistent with the complaint(discussed infra): the Holmans specificallypleaded that their supervisor sexually harassedboth of them and retaliated against both of them.Similarly, they assert at oral argument for thefirst time that the evidence could show that theharassment of Mr. Holman was not sufficientlysevere or pervasive. Lear v. Cowan, No. 99-2564,2000 WL 291376, at *2 (7th Cir. March 21, 2000)(arguments raised for the first time at oralargument are waived). But this, too, isinconsistent with the complaint: by pleading thathe was sexually harassed in violation of TitleVII, Steven is alleging, by definition, that theharassment was severe or pervasive. It is alsoinconsistent with what the Holmans told us atoral argument: “Now we are arguing today thatboth of them, at least at this stage, sufferedthe type of harassment which is actionable andpervasive . . . .”
FN6 This case is thus different from Shepherd, wherethe plaintiff did not plead that the supervisorhad been sexually harassing both a man and awoman. 168 F.3d at 1011 (question as to whetherthe plaintiff had a viable Title VII sexualharassment claim was raised by evidence that thecoworker may have harassed both men and women).
FN7 The EEOC also argues that the Holmans’ sexualharassment claims should not be dismissed becausethe evidence could show that Uhrich sexuallyharassed them in ways unique to their sex(evidently, meaning in terms of their differentbody parts). Given the (obvious) differences inmale and female anatomy, that Uhrich would do sohardly seems remarkable. More to the point, underthis theory either Uhrich sexually harassed boththe Holmans (as they alleged), in which case hewould not be discriminating against either ofthem (and we would be back to where we started),or he did not sexually harass one of them, whichwould be a scenario inconsistent with thecomplaint.
FN8 “Mr. and Mrs. Holman worked for the State ofIndiana. They were sexually harassed by the samesupervisor. They filed a complaint in court bywhich each of them alleged sexual harassment bythe same supervisor.”
FN9 “At this stage, Plaintiffs have alleged in theircomplaint that Mr. Uhrich’s intended targets wereboth Steven and Karen Holman.” Initial Brief at14 (emphasis added); see also id. (emphasis inoriginal) (“Both Steven and Karen Holman shouldbe able to pursue their respective harassmentclaims because they were both harassed ‘becauseof’ their gender.”).
Holman v. State of Indiana In theUnited States Court of AppealsFor the Seventh Circuit No. 99-1355 Steven J. Holman and Karen L. Holman, Plaintiffs-Appellants, v. State of Indiana and Indiana Departmentof Transportation, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 97 C 178–William C. Lee, Chief Judge. Argued November 4, 1999–Decided May 1, 2000 Before Manion, Kanne, and Evans, Circuit Judges.
