The Equal Opportunity Harasser, Sexual Harassment, Gender-Neutral Words, and Ludwig Wittgenstein

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Peer-Reviewed Article

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The equal opportunity harasser (EOH) in sex discrimination cases is an employer who harasses both male and female employees alike. The EOH principle postulates that equal harassment of both genders equates to an absence of disparate treatment and therefore an absence of the discriminatory conduct necessary to violate antidiscrimination laws. In comparing the equality of the harassment, courts have generally focused on external indicators consisting mainly of perceptible manifestations of the harassment, such as the number of harassing episodes, the nature of the harassment, and most notably, the words used during such episodes. This note’s focus is on the words used during the harassment. Its premise maintains that the external indicators analysis fails to consider implicit indicators, that is, the societal hierarchy and norms which shape the persons’ sentiments long before the employer employee relationship is formed. It is this less palpable background which lends meaning to the words used during the harassment. This note suggests that the most viable standard should hold the presumption that even apparently gender-neutral words are virtually inexorably due to sex, accordingly, the equal EOH should be per se rejected.