dissenting:

This case comes to us on appeal in the wake of the granting of a summary judgment motion. There was no trial, therefore no opportunities for cross examination of the witnesses. In addition, there are factual gaps in the record that can only lead by speculation. Consequently, I believe that it is an inappropriate case with which to establish a new legal precedent which will be binding in all subsequent cases of like nature in the Ninth Circuit. I refer to the majority’s use of the term “reasonable woman,” a term I find ambiguous and therefore inadequate.

Nowhere in section 2000e of Title VII, the section under which the plaintiff in this case brought suit, is there any indication that Congress intended to provide for any other than equal treatment in the area of civil rights. The legislation is designed to achieve a balanced and generally gender neutral and harmonious workplace which would improve production and the quality of the employees’ lives. In fact, the Supreme Court has shown a preference against systems that are not gender or race neutral, such as hiring quotas. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 , 109 S.Ct. 706 , 102 L.Ed.2d 854 (1989). While women may be the most frequent targets of this type of conduct that is at issue in this case, they are not the only targets. I believe that it is incumbent upon the court in this case to use terminology that will meet the needs of all who seek recourse under this section of Title VII. Possible alternatives that are more in line with a gender neutral approach include “victim,” “target,” or “person.”

The term “reasonable man” as it is used in the law of torts, traditionally refers to the average adult person, regardless of gender, and the conduct that can reasonably be expected of him or her. For the purposes of the legal issues that are being addressed, such a term assumes that it is applicable to all persons. Section 2000e of Title VII presupposes the use of a legal term that can apply to all persons and the impossibility of a more individually tailored standard. It is clear that the authors of the majority opinion intend a difference between the "reasonable woman” and the “reasonable man” in Title VII cases on the assumption that men do not have the same sensibilities as women. This is not necessarily true. A man’s response to circumstances faced by women and their effect upon women can be and in given circumstances may be expected to be understood by men.

It takes no stretch of the imagination to envision two complaints emanating from the same workplace regarding the same conditions, one brought by a woman and the other by a man. Application of the “new standard” presents a puzzlement which is born of the assumption that men’s eyes do not see what a woman sees through her eyes. I find it surprising that the majority finds no need for evidence on any of these subjects. I am not sure whether the majority also concludes that the woman and the man in question are also reasonable without evidence on this subject. I am irresistibly drawn to the view that the conditions of the workplace itself should be examined as affected, among other things, by the conduct of the people working there as to whether the workplace as existing is conducive to fulfilling the goals of Title VII. In any event, these are unresolved factual issues which preclude summary judgment.

The focus on the victim of the sexually discriminatory conduct has its parallel in rape trials in the focus put by the defense on the victim’s conduct rather than on the unlawful conduct of the person accused. Modern feminists have pointed out that concentration by the defense upon evidence concerning the background, appearance and conduct of women claiming to have been raped must be carefully controlled by the court to avoid effectively shifting the burden of proof to the victim. It is the *885 accused, not the victim who is on trial, and it is therefore the conduct of the accused, not that of the victim, that should be subjected to scrutiny. 1 Many state legislatures have responded to this viewpoint, and rules governing the presentation of evidence in rape cases have evolved accordingly. 2 See generally, Galvin, Shielding Rape Victims in the State and Federal Courts: a Proposal for the Second Decade, 70 Minn.L. Rev. 763 (April 1986).

It is my opinion that the case should be reversed with instructions to proceed to trial. This would certainly lead to filling in the factual gaps left by the scanty record, such as what happened at the time of or after the visit of Ellison to Gray’s house to cause her to be subsequently fearful of his presence. The circumstances existing in the work place where only men are employed are different than they are where there are both male and female employees. The existence of the differences is readily recognizable and the conduct of employees can be changed appropriately. This is what Title VII requires. Whether a man or a woman has sensibilities peculiar to the person and what they are is not necessarily known. Until they become known by manifesting themselves in an obvious way, they do not become part of the circumstances of the work place. Consequently, the governing element in the equation is the workplace itself, not concepts or viewpoints of individual employees. This does not conflict with existing legal concepts.

The creation of the proposed “new standard” which applies only to women will not necessarily come to the aid of all potential victims of the type of misconduct that is at issue in this case. I believe that a gender neutral standard would greatly contribute to the clarity of this and future cases in the same area.

Summary judgment is not appropriate in this case.

. Cf. People v. Rioz, 161 Cal.App.3d 905, 909-910 , 207 Cal.Rptr. 903, 916 (1984) (evidence of whether the victim engaged in sexual activity with numerous men, even for pecuniary gain, is controlled by the procedural safeguards in evi-dentiary law).

. See Fed.R.Civ.Pro. 412; Vhay, The Harms of Asking: Towards a Comprehensive Treatment of Sexual Harassment, 55 U.Chi.L.Rev. 328, 345, n. 78 (Winter 1988); Fechner, Toward an Expanded Conception of Law Reform: Sexual Harassment Law and the Reconstruction of Facts, 23 U.Mich.J.L.Ref. 475, 495 (Spring 1990).