Courts Increase Risk Employers Face from Same-Sex Harassment Claims
 
December 30, 2002
 
Todd D. Steenson- Chicago

In the 1998 decision of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the U.S. Supreme Court ruled that sexual harassment involving a harasser and a victim of the same sex may violate Title VII of the Civil Rights Act of 1964.  At the same time, however, it is clear that Title VII does not prohibit discrimination based upon sexual orientation.  Since 1998, courts have struggled with reconciling the existence of same sex harassment claims with the absence of protection for sexual orientation discrimination.  Over the past year, courts in the Third and Ninth Circuits and the District of Massachusetts have addressed this issue in ways that blur the line between prohibited sexual harassment and unprotected sexual orientation discrimination. 

In a series of cases, these courts have ruled that harassment of a male employee because he does not conform to male stereotypes (e.g., he acts effeminately or as if he were gay) is prohibited sex discrimination, not sexual orientation discrimination.  And more recently, the full Ninth Circuit ruled that a male could claim sexual harassment even though he claimed that he was harassed because he was gay.  The Court concluded that harassment that involves touching of areas of the body associated with sex is automatically because of sex.  These decisions demonstrate that employers cannot rely on the argument that an individual was harassed because of sexual orientation to avoid liability.  Rather, employers must ensure that they take prompt and appropriate remedial action to stop all incidents of discriminatory harassment.

Oncale and Same-Sex Harassment

In its 1998 decision in Oncale, the U.S. Supreme Court recognized that same-sex sexual harassment could violate Title VII. However, the Supreme Court recognized that sexual orientation discrimination does not violate Title VII.  It further ruled that in a same-sex harassment case, the plaintiff must prove not only that the words or conduct used have offensive sexual connotations, but that they actually constituted discrimination because of sex. The Supreme Court gave three examples of ways a plaintiff can prove that members of one sex can discriminate against members of the same sex because of gender: (1) by showing that the harassers were motivated by sexual desire, which generally requires “credible evidence” that the harassers are homosexual; (2) showing that the harassment demonstrates that “the harasser [was] motivated by general hostility to the presence of [men] in the workplace”; or (3) demonstrating that the harasser treated men differently in a mixed-sex workplace.  Since that time, courts have struggled to implement these categories.

Courts’ Efforts to Distinguish Sex Discrimination from Sexual Orientation Discrimination

Nichols v. Azteca Restaurant

The Ninth Circuit first addressed the issue of gender stereotype harassment in Nichols v. Azteca Restaurant Enterprises, Inc., 264 F.3d 864 (9th Cir. 2001).  Azteca Restaurant Enterprises, Inc. (Azteca) operates a chain of restaurants in Washington and Oregon. It employed Antonio Sanchez from October 1991 to July 1995.

Throughout his tenure at Azteca, Sanchez was subjected to a relentless campaign of insults, name-calling and vulgarities.  Male co-workers and a supervisor repeatedly referred to Sanchez in Spanish and English as “she” and “her.” Male co-workers mocked Sanchez for walking and carrying his serving tray “like a woman,” and taunted him in Spanish and English as, among other things, a “faggot.” The remarks were not stray or isolated. Rather, the abuse occurred at least once a week and often several times a day.  Despite Sanchez’s complaints, the restaurant failed to take action to stop the harassment.

After he was fired, Sanchez sued Azteca for sexual harassment and retaliation.  The district court dismissed his claim, but the Ninth Circuit reversed.  It rejected the restaurant’s argument that the harassment was based on sexual orientation, and ruled that harassment of a man because he is effeminate is harassment “because of” his sex. The Court relied upon a U.S. Supreme Court decision, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Supreme Court ruled that denying a partnership to a woman who was believed to be too masculine and aggressive was sex discrimination that violated Title VII.  The employer described the plaintiff as “macho” and in need of “a course in charm school,” and told her that she could improve her partnership chances if she would “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Supreme Court concluded that “[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

The Ninth Circuit found that this reasoning applied equally to Sanchez’s claim.  “At its essence, the systematic abuse directed at Sanchez reflected a belief that Sanchez did not act as a man should act. Sanchez was attacked for walking and carrying his tray ‘like a woman’ — i.e., for having feminine mannerisms. Sanchez was derided for not having sexual intercourse with a waitress who was his friend. Sanchez’s male co-workers and one of his supervisors repeatedly reminded Sanchez that he did not conform to their gender-based stereotypes, referring to him as ‘she’ and ‘her.’ And, the most vulgar name-calling directed at Sanchez was cast in female terms.”  Therefore, the Court concluded that the harassment was based upon Sanchez’s sex and could violate Title VII.

Bibby v. Coca-Cola Bottling Co

The Third Circuit addressed similar issues in Bibby v. Coca-Cola Bottling Co. et al., 260 F.3d 257 (3d Cir. 2001), but reached a different result.  John Bibby, who is gay, was employed by Coca Cola Bottling Company in Philadelphia. A male co-worker repeatedly harassed him both physically and verbally. The physical harassment involved pushing him against a wall and blocking his path with a forklift. The verbal harassment involved statements such as “everybody knows you’re gay as a three dollar bill,” and  “everybody knows you’re a faggot.”

The Third Circuit ruled that Bibby did not have a claim under Title VII for sexual harassment.  It first recognized that under Oncale, it had to distinguish between prohibited sexual harassment and unprotected harassment based on sexual orientation. It then recognized, as did  the Ninth Circuit, that harassment of a male because he does not conform to male gender stereotypes is sex discrimination. Notably, the Third Circuit stated that the fact that harassment based on gender stereotypes may also be motivated in part by antigay or antilesbian animus does not defeat the victim’s claim under Title VII. Once a victim shows he or she was discriminated against “because of sex” based on gender stereotyping, other motives are irrelevant.

Nonetheless, the Third Circuit concluded that Bibby’s allegations did not fit into any of the categories of actionable same-sex harassment. The court stressed that he did not claim:

• he was being harassed because he was a man
• his harassers were motivated by sexual desire
• his harassers were hostile to the presence of men in the workplace or in his particular job, or
• he was harassed because he failed to comply with societal stereotypes of how men ought to appear or behave

Centola v. Powell

The federal district court in Massachusetts addressed similar issues in the case of Centola v. Powell, (D. Mass 2002).  Centola was employed as a letter carrier by the U.S. Postal Service.  He claimed that although he never disclosed to his co-workers or managers that he was gay, his co-workers harassed him by making sexually derogatory remarks, distributing signs and cartoons mocking him, and referring to him using antigay epithets.  For example, he claimed that on one occasion, his co-workers placed a sign reading “Heterosexual replacement on duty” on his desk along with a picture of Richard Simmons in hot pink pants.  He also claimed that his supervisors harassed him by disciplining him more severely for minor conduct and attendance infractions.

The United States District Court for the District of Massachusetts rejected the Postal Service’s claim that Centola had merely alleged sexual orientation discrimination. Relying on the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins, the court concluded that “just as a woman can ground a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim of sex discrimination on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity.”  The judge further reasoned that “sexual orientation harassment is often, if not always, motivated by a desire to enforce heterosexually defined gender norms” and that “stereotypes about homosexuality are directly related to our stereotypes about the proper roles of men and women.”  Finally, the court ruled that as long as a plaintiff can show that he was discriminated against because of sexual stereotyping, the fact that he also may have been discriminated against because of his sexual orientation is irrelevant.

The Court relied upon two principal pieces of evidence in concluding that Centola was entitled to bring his sex stereotyping claim before a jury.  First, Centola never disclosed his sexual orientation to his co-workers.  Second, the court referred to the picture of Richard Simmons that had been taped on Centola’s chair.  Finding that Richard Simmons so clad is “hardly what most people in our society would consider to be a masculine icon,” a reasonable jury could find that “Centola’s co-workers harassed him because Centola did not conform with their ideas about what ‘real’ men should act or look like.”  

Rene v. MGM Grand Hotel

Recently, in the case of Rene v. MGM Grand Hotel, the U.S. Court of Appeals for the Ninth Circuit lowered the barrier for same sex harassment claims even more. Medina Rene worked as a butler at the MGM Grand Hotel in Las Vegas. The floor on which he worked was staffed only by men.  Rene claimed that over a three-year period, his male supervisor and co-workers physically harassed him and called him names because of his sexual orientation.  Male co-workers whistled at him, blew kisses to him, called him “sweetheart,” mocked him for walking in a feminine manner, and made him look at pictures of naked men having sex.  In addition, the men allegedly grabbed his genitals and buttocks and touched his body “like they would to a woman.”

Rene sued, claiming that his co-workers’ conduct was illegal sexual harassment. During a deposition, Rene admitted that he believed he had been harassed because he is gay.  Also, because his floor was staffed only by men, he was unable to show that his co-workers treated him differently than they treated women.  Based upon this evidence, the trial court and a panel of the Ninth Circuit ruled he could not prove discrimination because of sex.

Rene then asked the full Ninth Circuit to review his case.  The full court, in a 6-5 decision, reversed and ruled that Rene was entitled to a trial on his sexual harassment claim. It reasoned that because the physical attacks to which Rene was subjected targeted body parts clearly linked to his sexuality, they were “because of ... sex.”  The fact that they also might have been because of his sexual orientation was irrelevant.  Furthermore, the Court stated that Rene did not need to show that he was treated worse than members of the opposite sex; instead, it was enough to show that he suffered discrimination in comparison to other men.

One judge who agreed with the outcome did not agree with this reasoning.  Rather, this judge ruled that Rene had showed discrimination “because of sex” because he presented evidence that he was harassed because he did not conform to male gender stereotypes, i.e., he did not act as a man should act.  That evidence, this judge ruled, directly showed that the treatment was related to Rene’s gender.

What Does This Mean for Employers?

These decisions significantly blur the line between sex discrimination, which Title VII prohibits, and sexual orientation discrimination, which Title VII does not prohibit. In each of these cases, it appears that the plaintiff’s co-workers harassed him because they thought he was or acted like he was a homosexual.  One would have expected the courts to conclude that such harassment because the employees appeared to be homosexual would not be found to violate Title VII. 

But these courts have not viewed the issue that way.  Rather, they have reasoned that much harassment that appears to be directed at sexual orientation is in fact harassment based on the plaintiff’s failure to act as a man is “supposed” to act.  The Rene decision takes matters even a step further. The Ninth Circuit’s decision that any physical harassment involving an area of the body associated with sex is necessarily because of sex appears to eliminate the Supreme Court’s “because of sex” requirement. 

In light of these recent decisions finding that harassment of or discrimination against “effeminate” men is prohibited sex stereotyping, employers cannot confidently rely upon a defense that its employees were merely discriminating against someone based upon sexual orientation.  Moreover, many states, counties and municipalities have laws prohibiting harassment and discrimination on the basis of sexual orientation. As a result, employers should respond to harassment of employees that appears to be based on sexual orientation or an employee’s “effeminate” nature just as they respond to any other discriminatory harassment.  Harassment policies should prohibit such conduct, and employers should investigate and stop all such conduct. 

For more information, contact Todd D. Steenson, toll free, at 888-688-8500.