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42 usc 2000e 2a1 ii looking at the allegations in

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Unformatted text preview: he does allege that his claims are "for unlawful discrimination on the basis of sex and/or sex stereotyping" and "perpetuation of a hostile working environment on the basis of sex." Compl. at ¶ 10(A) & (B), J.A. at 10. He then proceeds in excruciating detail to describe the vile and sexually explicit acts that allegedly were committed against him by defendants Dixon and Mueller, and which allegedly were approved or condoned by defendant Anderson. In the context of a motion for judgment on the pleadings, we, like the trial court, must view these allegations as true and "construe the complaint in the light most favorable to the plaintiff." Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). I have no quarrel with the proposition that a careful distinction must be drawn between cases of gender stereotyping, which are actionable, and cases denominated as such that in reality seek protection for sexual-orientation discrimination, which are not. Nor do I believe that gender stereotyping is actionable per se under Title VII, although certainly it may constitute evidence of discrimination on the basis of sex. As Judge Posner of the Seventh Circuit pointed out: [T]here is a difference that subsequent cases have ignored between, on the one hand, using evidence of the plaintiff's failure to wear nail polish (or, if the plaintiff is a man, his using nail polish) to show that her sex played a role in the adverse employment action of 158 which she complains, and, on the other hand, creating a subtype of sexual discrimination called "sex stereotyping," as if there were a federally protected right for male w...
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