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Today is Wednesday, November 28, 2007


U.S. Court of Appeals Rules in Favor of Plaintiff in Same-sex Harassment Case

U.S. Supreme Court allows ruling to stand by denying review

By deciding not to review the case of Medina Rene, a gay hotel worker in Las Vegas who successfully sued his employer for same-sex sexual harassment, the U.S. Supreme Court lets stand a ruling by the 9th Circuit U.S. Court of Appeals that same-sex sexual harassment is actionable under Title VII of the Civil Rights Act of 1964.

Title VII bars discrimination in the workplace "because of sex" and other factors. The decision leaves intact a decision in Rene's favor last September by the full bench of the U.S. Court of Appeals for the 9th Circuit.

Rene lost his case twice, first in federal court in Nevada, and subsequently before a three-judge 9th Circuit panel. Although sexual harassment is considered a form of sex discrimination in most situations, these courts ruled that Rene's tormentors were targeting him not because he was a man, but because he was a gay man. Sexual orientation is not protected under Title VII.

The case illustrated some of the problems that have perplexed courts in the face of same-sex sexual harassment. A ban on sexual harassment is not spelled out in federal law. But in 1986, the Supreme Court ruled that sexual harassment was a form of sex discrimination, and therefore a violation of Title VII. Later, the court expanded the definition of sexual harassment from "quid pro quo" threats, to the sort of behavior that creates a hostile environment in the workplace (persistent sexual remarks and hazing, for example). The high court's opinions were well-suited to the scenario of male co-workers and supervisors who harassed their female colleagues. But complications arose when men harassed men or women harassed women on a sexual basis.

In 1998, the Supreme Court ruled that a heterosexual oil worker, Joseph Oncale, was entitled to sue his employer under Title VII after suffering a barrage of sexual harassment from the other men on the off-shore drilling platform where he worked. The court left the law unstable, however, by emphasizing that a Title VII claim must be based on harassment "because of sex." Other courts were left to grapple with the question of what exactly that meant.

In September of last year, the full court of the 9th Circuit ruled 7-4 that Medina Rene, who was groped and teased on a daily basis by the male staff at the MGM Grand Hotel, was indeed targeted "because of sex," noting that to decide otherwise would be to exclude gay men and lesbians from the protection of Title VII as men and women.

Whenever workplace harassment is sexually explicit, the mix of motives in the minds of the perpetrators is beyond court analysis, the majority ruled. By declining review on Monday, the high court left this interpretation of the law intact, along with several competing lower court rulings.

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