Left out of the law: in the eyes of the curt, just about everyone can be a victim of sexual harassment--except, perhaps, out gay men and lesbians. (Court).

Medina Rene was looking forward to starting his new job at the MGM Grand Hotel in Las Vegas. He had landed a plum assignment in 1993 as part of the elite, all-male staff of butlers at the penthouse reserved for wealthy and famous guests. It was a job he felt both lucky and proud to have, especially when he got to wait on guests such as Barbra Streisand and the crown prince of Brunei.

But the job became difficult, Rene says, when his fellow butlers learned that he is gay. At first, he says, they called him names like muneca, which is Spanish for doll. Then the other men started to get physical, Rene says--poking fingers in his anus and grabbing at his crotch. Other times, Rene adds, they forced him to look at gay pornography.

"I was scared to go into work, but I thought I might lose my job, and my mom was ill," Rene says. He went through what he describes as more than two years of abuse, and in 1997, a year after being fired by MGM, he filed a sexual harassment suit against the hotel.

Five years later the ninth circuit U.S. court of appeals handed Rene his first small victory in the case. Although two lower courts had rejected Rene's complaint--saying the same--sex sexual harassment he alleges is not a violation of federal Title VII guidelines--the 11-judge panel ruled on September 24 that Rene could sue under Title VII, which prohibits discrimination motivated by race, national origin, religion, and sex. What we think of as federal sexual harassment law is in fact a string of legal interpretations of that 1964 law.

While the treatment Rene says he was forced to endure at the hotel sounds like it would be a pretty clear case of sexual harassment, the courts' varied reactions to his lawsuit are a reflection of the legal system's conflicting opinions when it comes to same-sex sexual harassment. While courts have said the law clearly prohibits a gay man or lesbian from sexually harassing a heterosexual coworker, there are few state laws--and no federal law--providing explicit protections for gay or lesbian victims of same-sex sexual harassment in the workplace.

"Taken to the extreme, it is very frightening," says Rene's attorney Richard Segerblom. "It means that gays and lesbians are fair game in the workplace, and that contradicts logic and the law."

As if to underscore the contradictory nature of the legal system when it comes to same-sex sexual harassment, the Northern District of New York federal court ruled two days after the Rene decision that another gay man, David Martin, could not sue his employer for same-sex sexual harassment.

Martin started work as a corrections officer at the Coxsackie Correctional Facility in 1992. There, he says, fellow officers regularly called him offensive antigay names. The situation escalated into physical attacks, Martin says.

"I am a very stable person for the most part, but incidents around this affected every facet of my life," Martin says. "I feared for my safety, and I was an emotional wreck."

One reason for the disparity in sexual harassment law is the way Title VII was drafted by Congress in 1964, says Jon Davidson, senior counsel for Lambda Legal Defense and Education Fund. The prohibitions on discrimination based on race, national origin, and religion were in the initial draft, but those addressing sex discrimination were added as an afterthought in a perfunctory nod to the growing women's rights movement.

As a result, not much is known about lawmakers' intent in adding protections against sex discrimination to the law. Most courts originally interpreted this to mean a man could not legally discriminate against a woman because of her gender. But in the years since Title VII was passed, courts have handed down broader interpretations. In 1989, for example, the U.S. Supreme Court ruled in Price Waterhouse v. Hopkins that a heterosexual woman had been denied a promotion for being too masculine. The court said this was illegal discrimination based on gender stereotyping.

Then in 1998, the Supreme Court ruled for the first time in a same-sex sexual harassment case in Oncale v. Sundowner Offshore Services Inc. The justices found that Joseph Oncale, a straight male oil rig worker who had been subjected to extreme sexually charged hazing by male coworkers, was targeted because he was male, not because of his sexual orientation.

Since that ruling--and until the Rene ruling--federal courts and many state courts have put the onus on plaintiffs in same-sex harassment cases to prove the harassment is based on their gender, which is covered by Title VII, and not on their sexual orientation, which is not.

What this means for gay people is that unless you live in a state that specifically prohibits discrimination based on sexual orientation, it's easier to win a same-sex sexual harassment suit if you're in the closet at work. If you're out, it's less likely that the court will believe the harassment is based on your gender rather than your sexual orientation.

"Gays and lesbians are in a gray zone about harassment," Davidson explains. "If they can show [their case] is sexual, then they could win. If it is about sexual orientation, then they will lose."

Experts on gay workplace issues say this discrepancy can be remedied in one of two ways. Lawmakers must either amend Title VII to include protections against sexual orientation--based discrimination or pass the federal Employment Non-Discrimination Act, which would ban such discrimination on the job.

"Sexual orientation has to be set aside as a barrier to any worker," says Bob Witeck, chief executive officer of Witeck-Combs Communications Inc., based in Washington, D.C., and an expert on gay employment issues. "The laws should work equally, and ENDA may be the bludgeon for this, bringing a sense of judgment and justice to the job in terms of workplace fairness."

Davidson agrees, adding that it is more likely that lawmakers will pass ENDA than alter Title VII. "The main reason ENDA is proposed, as opposed to amending Title VII, is that women's rights groups and others don't want Title VII touched," he says. "They are afraid those who don't like Title VII will use it as an opportunity to weaken protections that are already there."

The issue also could be resolved if Rene's case is eventually heard by the U.S. Supreme Court. Segerblom says MGM officials have told him that they plan to appeal the ninth circuit court's ruling. A spokesman for the hotel chain says he has not heard about any decision regarding an appeal, but both sides agree an appeal could be a public relations problem for MGM.

"Any time you argue what are, in truth, technical aspects of the law as opposed to the underlying substance, that is always difficult, and that is exactly what we have going on," says MGM spokesman Alan Feldman, who adds that the company has a nondiscrimination policy that includes sexual orientation. (MGM maintains that Rene was protected by this policy and that his harassment claims are unwarranted.)

But Rene and Martin say the details of their cases are hardly technicalities but instead painful chapters in their lives that they still struggle to put behind them. Several years ago Rene relocated to Palm Beach, Fla., to seek a fresh start as a waiter. Still, publicity from his lawsuit has dogged his working life there, and coworkers still taunt him with antigay epithets. "I thought it was just Las Vegas, but it is bad here too," he says.

Martin accepted a union job working with underprivileged youths. While he describes this job as much better than the last one, he's still wary because of his experience at the prison. "If you are gay, you might as well hang it up, because no one will protect you," he says. "[Management] will say workplace harassment is not condoned, but by not fulfilling it in their acts, they are actually condoning it with a wink and a nod. We are looking for the same protections that everyone else enjoys by virtue of being straight. Why is that such a far-fetched notion?"

Quittner also has written for the New York Post and Business Week.

RELATED ARTICLE: She said, she said: a sexual harassment suit at Hollywoods' Power Up proves that lesbians can sue too.

BY KEVIN MAYNARD

It was a story out of a B movie: a Hollywood sexual harassment case not between a mogul and a starlet but between two cofounders of POWER UP, Tinseltown's two-year-old networking organization for lesbians in the entertainment industry. On November 2, just a day before the organization's glittering Power Premiere gala in Beverly Hills, the Los Angeles Times broke the story of an ongoing legal battle between POWER UP's executive director, Stacy Codikow, and its former publicist, Karen Pearson Brown.

Last year, after having been fired by POWER UP, Brown accused Codikow of making sexual overtures, asking about the sex life of Brown and her partner, and demanding Brown's resignation after learning Brown is bisexual. Since then, Codikow has countersued, claiming Brown made sexual advances toward her and defamed her by claiming that Codikow had embezzled $38,000 from POWER UP.

In a statement, Codikow told the Times that Brown's "tawdry allegations are completely false and motivated by POWER UP's decision to ask her to stop volunteering after her continued poor conduct resulted in threatened litigation against POWER UP. Her response was, `There will be no POWER UP if I can't be part of it,' `I will destroy it,' and `I will take you down.'" (Codikow declined to comment for this story.)

Brown's attorney, Craig T. Byrnes, says that Codikow's claims are unfounded: "They're attempting to abuse the legal process to make Ms. Brown give up, to make a jury believe that the issues are too confusing to sort out--and that's not going to happen. Ms. Brown will not give up. She believes the reason she's pursuing these issues is of great importance to the gay and lesbian community."

The case is already dividing that community. Marjorie Mann, a production manager, is on Brown's side, saying she resigned from POWER UP in August because Codikow continually harassed her. "I just couldn't stand the atmosphere," she says. "Every time I was in Stacy's company there were highly inappropriate sexual comments. When I brought in a friend to work with me, a straight woman, she made sexual comments to her as well."

On the other hand, writer-director Lee Rose is outraged on Codikow's behalf. A POWER UP board member who mentored this year's three winners of POWER UP film production grants, Rose says, "For the L.A. Times to put a story like that in with salacious accusations that have not been proven was shocking to me. If it had been a heterosexual boardroom [story], which happens every day of the week, they wouldn't have printed it."

So what happens next? Are the suits legally viable? At press time Codikow and Brown were reportedly moving toward an out-of-court settlement. That would prevent the case from setting any legal precedents on same-sex sexual harassment involving gay and bisexual women.

And what about the fallout for POWER UP? "Ironically," says Gregg Kilday, Hollywood Reporter film editor and Advocate contributor, "it will probably bring them more attention within the mainstream press and establishment Hollywood players who might not have known of their existence than any more positive things they might've done over the last two years." Perhaps, as studio wags often say, there's no such thing as bad publicity.

Maynard writes for the Los Angeles Times and Entertainment Weekly.

Quittner also has written for the New York Post and Business Week.