Ninth Circuit Reinstates Gay Workerís Suit Alleging Harassment: 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 courtís own three-judge panel, divided 7-4 in favor of reinstating Medina Reneís 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 Reneís open sexual orientation, not his gender. But Judge William A. Fletcher, writing yesterday for a five-judge plurality, said Reneís 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.
Sad thing is, I think the dissent is correct in this case. Rene himself alleges that the harrassment came not because he and his coworkers were all male, but because he was gay and they were not. Congress has explicitly and repeatedly declined to add sexual orientation to the grounds for which one may claim discrimination (see shame on Winn Dixie, redux), and Oncale addresses more traditional sexual harrassment -- that is, the defendant was trying to get Oncale to sleep with him, and both defendant and Oncale were male and gay. It's stretching things quite a bit to say that Oncale prohibits the harrassment that Rene experienced.
That said, Pregerson noting that the Ninth Circuit itself has a different legal precedent is an entirely different kettle of fish. THAT said, I'm guessing that in two, three years, when/if the Winn Dixie case reaches the Supreme Court (I don't think it will, but let's pretend), they may step in because at that point, you'll have conflicting legal interpretations in two different circuits.
And the Ninth will be slapped down. Again.Posted by iain at September 26, 2002 05:07 PM
I think you've got something a bit wrong in your comments on Rene v. MGM Grand and Oncale v. Sundowner. Everything I have read about the Oncale case indicates that both Oncale and his harassers identified as heterosexual. True, the harassment was sexual -- coworkers held Oncale down while his supervisor placed his penis on Oncale's neck, and he was restrained another time while the supervisor shoved soap in his anus. But nowhere in the record or commentary is it suggested that either party was gay. I think there was even depositional testimony that the harasser lived with his girlfriend.
In Rene v. MGM, the coworkers repeatedly grabbed Rene's genitals and poked fingers in his anus through his clothes, as well as taunted him about his feminine behavior. I don't see the distinction between the "traditional" harassment in Oncale and the "sexual orientation" harassment in Rene. The court found Rene's harassment was discrimination based on sex because he failed to meet the sexual sterotypes his coworkers expected. Discrimination based on sexual stereotypes has been recognized since the early regulations of the EEOC in 1966 and by the Supreme Court since Price Waterhouse v. Hopkins in 1989.
Otherwise, great site! Thanks for putting this info out there.Posted by Andrew at January 10, 2003 02:36 AM