Title VII protects gay workers from sexual harassment, Ninth Circuit finds.

In a ruling that advances legal protections for gays and lesbians, the Ninth Circuit Court of Appeals has found that sexual orientation is "irrelevant" in cases where on-the-job harassment constitutes "severe or pervasive unwelcome conduct of a sexual nature." (Rene v. MGM Grand Hotel, 305 F. 3d 1061 (2002).)

The September en banc ruling was considered a landmark victory for gay-rights advocates because federal civil rights law does not offer explicit protection from discrimination based on sexual orientation.

The confusion surrounding Title VII--which protects workers from harassment on the basis of race, creed, gender, and national origin--was underscored just two days after the Ninth Circuit ruled, when a federal court in Albany, New York, held that a gay man could not sustain a federal civil rights claim because he did not act in an overtly "effeminate manner." (Martin v. State of N. Y. Corr. Facility, No. 99-CV-1364 RFT, 2002 WL 31133238 (N.D.N.Y. Sept. 26, 2002).)

The Ninth Circuit case centered on Medina Rene, a former butler on the 29th floor of the MGM Grand Hotel in Las Vegas, which is reserved for high rollers and staffed entirely by men. Rene claimed that between 1993 and 1996, his supervisor and several employees created a hostile work environment because he is gay--whistling at him, blowing kisses, and touching him in a manner that Judge William Fletcher said would constitute "physical sexual assault."

Writing for the Ninth Circuit majority, Fletcher noted that such conduct has "routinely been prohibited as sexual harassment under Title VII." In allowing Rene's claim to go forward, he said the behavior Rene endured satisfied a major criterion of Title VII--that the harassment arose "because of ... sex."

"Rene's tormentors," he wrote, "did not grab his elbow or poke their finger in his eye. They grabbed his crotch and poked their fingers in his anus."

Stressing that the case had yet to go before a jury, MGM spokeswoman Shelley Mansholt said it was the hotel's "ultimate desire" for the case to go before the U.S. Supreme Court. "We do not condone the type of behavior that Mr. Rene has alleged," she said.

Four of 11 judges in Rene dissented. Judge Proctor Hug Jr., writing for the dissenters, argued that Title VII of the 1964 Civil Rights Act does not protect people from harassment based on sexual orientation. Adding such protection, he wrote, is "a matter for Congress."

A federal judge had ruled earlier that Title VII applies only to gender bias, and the judge dismissed the suit on summary judgment. A Ninth Circuit panel later upheld that decision.

Several advocates, while acknowledging the ruling's limitations--it did not offer the blanket protection against sexual orientation harassment that many seek--called the decision a sign of progress.

"What was really great about Fletcher's ruling is that it said that gay people are just as protected as nongay people when it comes to sexual harassment," said Jon Davidson, senior counsel in the Los Angeles office of the Lambda Legal Defense Fund, a gay-rights advocacy group.

"They can sue for sexual harassment; they just can't sue for sexual orientation harassment."

If the route to justice in this case seems circuitous, that's partly due to Congress's unwillingness to pass laws explicitly protecting homosexuals from discrimination. And a pair of U.S. Supreme Court cases, while providing protection in limited circumstances, has engendered conflicting interpretations from the lower courts.

In 1989, the High Court bolstered Title VII by outlawing discrimination based on sexual stereotyping. In Price Waterhouse v. Hopkins, it ruled that a woman was wrongly denied a promotion because she was deemed too masculine in style. (490 U.S. 228 (1989).)

And in 1998, the justices ruled for the first time in a same-sex sexual harassment case, Oncale v. Sundowner Offshore Services, Inc. (523 U.S. 75 (1998).) The Court found that a straight male oil worker was the victim of brutal sexual hazing by straight male coworkers. What is significant is that the harassment was deemed to arise from the fact that he was male, not from his sexual orientation.

The Ninth Circuit in Rene drew guidance from both of these precedents. In the lead opinion, Fletcher and four other judges appeared to rely on Oncale to hold that Rene's case was one of sexually charged violence, in which the victim's sexual orientation was irrelevant. Judge Harry Pregerson, joined by two justices, concurred in the result but wrote separately that Rene could sue for sexual stereotyping based on Price Waterhouse. Just last year, the court found that a gay man could sue for gender-stereotyping harassment. (Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2002).)

In both that case and Rene, "a male gay employee was `teased' or `mocked' by his male coworkers because he walked `like a woman,'" Pregerson wrote. "And in both cases, a male gay employee was referred to by his male coworkers in female terms ... to `remind [him]'that he didn't conform to their gender-based stereotypes.'"

The four dissenters did not reject Pregerson's argument but said that since Rene failed to raise the stereotyping claim in district court, they were precluded from reaching it on appeal.

The ruling should guide lawyers representing gay clients in discrimination cases, Davidson said. "You can't plead these cases with regard to sexual orientation," he said. "Again and again, I've seen lawyers totally blow it by going that route, instead of relying on claims of sexual harassment or sexual stereotyping."

Even those arguments have their pit-falls, as shown in September's ruling in Albany, New York.

David Martin worked at the Coxsackie Correctional Facility from 1992 until 2002. Over the years, Martin claimed, he was subjected to persistent harassment by coworkers because he is gay; complaints to his union and his supervisors only led to increased discrimination.

Since Martin could not advance a claim based on sexual orientation, he alleged that he was the victim of sexual stereotyping, a claim rejected by U.S. Magistrate Judge Randolph Treece.

"Martin's affidavit is devoid of any statement that he acts in an effeminate manner," Treece wrote. "The torment endured by Martin, as reprehensible as it is, relates to sexual orientation. The name-calling, the lewd conduct, and the posting of profane pictures and graffiti are all of a sexual, not a gender, nature."