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Unformatted text preview: raffiti did not establish hostile work environment claim
because his co-workers "maligned him because of his apparent homosexuality, and not
because of his sex"); see id. at 1086 ("Title VII is not a 'general civility code' for the
workplace; it does not prohibit harassment in general or of one's homosexuality in
particular.") (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999) (rejecting hostile work environment
claim where plaintiff was verbally harassed and mocked due to his homosexuality
because he failed to show that harassment occurred because of his sex). But see Rene,
305 F.3d at 1066 (finding that male employer who was subject to severe, pervasive, and
unwelcome physical conduct was harassed because of his sex because he was subjected
to attacks "which targeted body parts clearly linked to his sexuality"). Based on the
foregoing precedent, Vickers has failed to plead a hostile work environment claim.
For the foregoing reasons, we affirm the decision of the district court granting
defendants-appellees' motion for judgment on the pleadings pursuant to Rule 12(c) as
well as the district court's decision not to exercise supplemental jurisdiction over Vickers'
state law claims.
DAVID M. LAWSON, District Judge, dissenting.
As the majority correctly states, in Price Waterhouse v. Hopkins, the Supreme Court held
that "making employment decisions based on sex stereotyping, i.e., the degree to which
an individual conforms to traditional notions of what is appropriate for one's gender, is
actionable under Title VII." Ante at 762. Because I believe that the plaintiff in this case
has pleaded exactly that, I conclude that he has stated a cognizable claim in his complaint
that should have survived dismissal under the standard of review that applies to motions
under Federal Rule of Civil Procedure 12(c). Since the majority has concluded otherwise,
I must respectfully dissent.
It is beyond debate that Title VII does not prohibit workplace discrimination or
harassment based on sexual preference, sexual orientation, or homosexuality. It is equally
clear that employment decisions or workplace harassment that are based on the
perception that the employee is not masculine enough or feminine enough-...
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- Spring '08