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wear nail polish and dresses and speak in falsetto and mince about in high heels, or for
female ditchdiggers to strip to the waist in hot weather.
Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 (7th Cir.2003) (Posner,
J. concurring). However, these distinctions can be complicated, and where, as here, the
plaintiff has pleaded facts from which a fact finder could infer that sex (and not simply
homosexuality) played a role in the employment decision and contributed to the hostility
of the work environment, drawing the line should not occur at the pleading stage of the
lawsuit. "Claims lacking factual merit are properly dealt with through summary judgment
under Rule 56.... This is because under the notice pleading standard of the Federal Rules,
courts are reluctant to dismiss colorable claims which have not had the benefit *768 of
factual discovery." Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch.
Dist., 428 F.3d 223, 228 (6th Cir.2005) (citing Conley, 355 U.S. at 48, 78 S.Ct. 99). Most
of the cases relied on by the majority were decided on summary judgment or after trial.
See, e.g., Price Waterhouse, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (review of
decision following bench trial); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d
Cir.2005) (review of summary judgment); Jespersen v. Harrah's Operating Co., 392 F.3d
1076 (9th Cir.2004) (same); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th
Cir.2002) (en banc) (same); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir.2001)
(review of jury verdict); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d
Cir.2001) (review of summary judgment); Weinstock v. Columbia Univ., 224 F.3d 33 (2d
Cir.2000) (same); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir.2000) (same);
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999) (same);
King v. Super Serv., Inc., 68 Fed.Appx. 659, 663 (6th Cir.2003) (same). It behooves
courts to view the evidence developed during discovery before declaring that a
defendant's behavior was motivated by hostility to homosexuals r...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08