Two wrongs do not make a defense: Eliminating the equal-opportunity-harasser defense

Sexual harassment is a prevalent problem in the American workplace that acc ounts for nearly sixty-four percent of all gender discrimination claims und er Title VII. The equal-opportunity-harasser defense allows harassers who t arget both males and females to escape liability. Courts have allowed the d efense because they have interpreted the "because of sex" element of a sexu al harassment claim to require disparate treatment or a showing that the pl aintiffs would not have been harassed if they were members of the opposite sex. An equal-opportunity harasser harasses both sexes and, therefore, plai ntiffs cannot prove disparate treatment. This Comment argues that the dispa rate-treatment requirement does not fit the sexual harassment model because it is a class-based analysis and sexual harassment is an individual-based discrimination. By limiting analysis of equal-opportunity-harasser claims t o disparate treatment, courts allow sexual inequality in the workplace to c ontinue, undermining the purpose behind sexual harassment laws. To rectify this situation, the courts should adopt an individual analysis of the "beca use of sex" element, which a recent U.S. Supreme Court decision allows. Ado ption of an individual analysis will follow current trends in federal and W ashington state courts to limit applicability of the defense and will enabl e courts to deny the equal-opportunity-harasser defense.