Metropolitan News-Enterprise


Wednesday, September 25, 2002


Page 1


Ninth Circuit Reinstates Gay Worker’s Suit Alleging Harassment


By KENNETH OFGANG, Staff Writer/Appellate Courts


Federal civil rights laws protect a homosexual worker allegedly harassed because of his sexual orientation, the Ninth U.S. Circuit Court of Appeals ruled yesterday en banc.

The 11-judge panel, overruling a district judge and the court’s own three-judge panel, divided 7-4 in favor of reinstating Medina Rene’s suit against the owner of the MGM Grand Hotel in Las Vegas.

The majority was unable to agree on a single rationale, however, and set forth its views in four separate opinions.

Rene, a gay butler, claims that from 1994 to 1996 his all-male co-workers and supervisor subjected him to a hostile work environment, including crude and demeaning pranks and assaults targeting his homosexuality.

U.S. District Judge Philip M. Pro ruled in 1997 that Rene did not have a federal case because any harassment was based on Rene’s open sexual orientation, not his gender.

But Judge William A. Fletcher, writing yesterday for a five-judge plurality, said Rene’s case is similar to that of the plaintiff in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), a unanimous decision that allowed a worker subjected to harassment by same-sex co-workers to sue for sex discrimination.

Cause of Action

Oncale, Fletcher reasoned, establishes a Title VII cause of action for “severe or pervasive same-sex offensive sexual touching” regardless of whether the conduct occurs within a workforce made up of both men and women or one that is all-male or all-female.

Because the alleged misconduct toward Rene involved “physical conduct of a sexual nature,” Fletcher said, it is actionable under Title VII. From the evidence presented by Rene in opposition to the summary judgment motion, Fletcher said, it was “clear that the offensive conduct was sexual” and that it “was discriminatory.”

Judges Stephen Trott, Sidney Thomas, Susan Graber, and Raymond Fisher joined Fletcher’s opinion. Trott and Judge Marsha Berzon also joined a concurring opinion by Judge Harry Pregerson, who said that Rene had a viable case because he presented evidence of “actionable gender stereotyping harassment.”

Pregerson cited a Ninth Circuit case holding that a gay male waiter could sue his employer for allowing co-workers to taunt him because of supposed feminine characteristics, such as the way he walked and carried a serving tray.

Graber concurred in Fletcher’s opinion but also wrote separately to emphasize that Title VII does not protect employees from discrimination based on sexual orientation, and to assert that Rene had not claimed a theory of sexual stereotyping.

Seperate Opinion

Fisher also wrote separately, agreeing with Fletcher, and, in part, with Pregerson.

Senior Judge Procter Hug Jr., who authored the three-judge panel opinion, dissented. He was joined by Chief Judge Mary Schroeder, Senior Judge Ferdinand F. Fernandez, and Judge Thomas G. Nelson.

Oncale, Hug argued, does not apply because Rene was not harassed “because of sex,” but allegedly because he was gay.

A claim could be brought under Oncale, the dissenting jurist argued,  if the harasser was homosexual and the harassment was sexual in nature; if the hostility was based on the plaintiff’s gender, such as when the harasser objects to the presence of men or of women in the workplace; or if the plaintiff was subjected to harassment in a mixed-sex workplace in a way that persons of the opposite sex were not.

Rene, the jurist said, could not make out a claim under the first example because he was not harassed by homosexuals or on the basis of his co-worker’s sexual desires, and had no claim under the second and third examples because the area in which he worked had a male-only workforce.

The case is Rene v. MGM Grand Hotel, Inc., 98-16924.


Copyright 2002, Metropolitan News Company