Assumption That Men Welcome Sexual Harassment Is Sex Stereotyping In Violation Of Title VII
You don’t often see sexual harassment cases in which the woman is the aggressor and the man is the victim. Many people (including some judges) don’t interpret those facts to constitute sexual harassment in violation of Title VII. That’s why the recent case of EEOC v. Prospect Airport Services from the Ninth Circuit Court of Appeals is so important.
What Happened In The Case
Rudolpho Lamas worked for Prospect Airport Services at McCarran International Airport in Las Vegas. He worked as a passenger assistant helping passengers who needed wheelchair assistance.
Lamas, a recent widower, started working for Prospect in April of 2002. That fall, Sylvia Munoz, a married co-worker began making sexual advances to Lamas. Munoz repeatedly:
- propositioned him for sex
- asked him out
- wrote him love notes which were sexually explicit
- performed gestures simulating fellatio when he walked by
- recruited co-workers who were telling him that she loved him and wanted him
- approached him in the parking lot at work and gave him a sexually suggestive photograph
Lamas never made overtures towards Munoz and told her and their co-workers over and over that he was not interested – but she didn’t stop.
Lamas complained to his boss but nothing was done. He talked to his next supervisor up the chain, Dennis Mitchell, and gave him one of the “love” notes. Mitchell told Lamas that he “did not want to get involved in personal matters.” Eventually Mitchell told Munoz that he knew she was “pursuing a coworker … and the coworker wanted the advances to stop.”
But Munoz did not stop and the harassment continued. He testified that every time he walked by her there was something — a gesture, licking her lips suggestively, asking if he “wanted to have some fun”, performing “blow job imitations” — and that it was embarrassing and causing constant pressure at work.
Co-workers began to speculate that Lamas was a homosexual — so in addition to having to deal with Munoz’s remarks and gestures, Lamas had to face co-workers remarks suggesting that he was gay. Lamas complained to four different Prospect management officials about the harassment, but nothing was done to stop it. Munoz kept up the behavior.
Lamas felt helpless, was crying, and consulted a psychologist about his distress. His performance began to suffer. Lomas was demoted because of “complaints about job performance “and his “negative attitude.” A few monthslater, in June of 2003, Lamas was fired.
The District Court Decision
Munoz filed a lawsuit in the federal district court in Nevada for sexual harassment. The district court concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment for a reasonable man.
In its decision grating judgment against Lamas, the district noted that most men would have “welcomed” the behavior, but Lomas admitted that due to his Christian background he was embarrassed instead. It also noted that Munoz never filed a written report complaining about the conduct. Lamas appealed.
The Ninth Circuit Court Of Appeals Reverses
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, which includes sexual harassment in the form of a hostile work environment. Both sexes are protected under the law.
In a hostile environment sex harassment claim, the plaintiff must prove that he or she:
- was subjected to verbal or physical conduct of a sexual nature
- which was unwelcome
- and sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment
In addressing the each of the elements and burden of proof as applied to this case, the Court found the following:
Conduct of a sexual nature
Whether Lamas was subjected to “verbal or physical conduct of a sexual nature” is an “easy question” according to the court.
Munoz propositioned him for sex. Munoz wrote to him that she dreamed of him in a bath, that she gave good “body wash,” and that she wanted him sexually. She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes. His proposition was for sex, not a cup of coffee together. After she recruited coworkers to pressure Lamas, they mocked him suggesting he was homosexual.
In addressing whether the conduct was welcome or not the Court stated:
It cannot be assumed that because a man receives sexual advances from a woman those advances are welcome. …. This is a stereotype and welcomeness is inherently subjective, so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual advances.
Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons.
… Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome.
Severe or Pervasive
It is well established that sporadic use of abusive language, gender-related jokes, and occasional teasing will not, standing alone, establish a hostile environment sexual harassment claim.
As stated above, in order to establish a violation, an employee must prove that the unwelcome sexual conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.
Whether a working environment is objectively abusive is determined only by looking at all of the circumstances which may include:
- the frequency of the discriminatory conduct
- its severity
- whether it’s physically threatening or humiliating
- whether it unreasonably interferes with an employee’s work performance
No single factor is required. In this case, the Court found that:
Monoz’s continued advances created an environment that Lamas reasonably perceived as hostile and abusive. Lamas’ emotional testimony about his co-worker statements about Munoz’s interest in him, his complaints to his supervisors and Prospect managers, as well as his complaints to the EEOC and State of Nevada all evidenced pervasiveness amounting to an abusive work environment.
Prospect Airport’s Response
An employer is liable for an employee’s sexual harassment of a co-worker if it knew, or should have known, about the harassment and failed to take prompt and effective remedial action. According to the Court:
The record established that a jury could reasonably find that Prospect knew about the harassment, and that its response was inadequate. Lamas complained to his employer, but Prospect’s responses were ineffectual, and known by Prospect to be ineffectual. … Prospect’s actions were not enough to establish an affirmative defense for Prospect.
With that, the case was reversed.
What was really interesting about the case was the district court’s reaction to the evidence — that is, this was not a case of sexual harassment because Lamas’ reaction to the sexual advances was not the same reaction most men would have. Other judges may have a tendency to view the evidence the same way.
This opinion clearly addresses the problem of erroneously stereotyping men in the context of a sexual harassment case in which the man is the victim. It doesn’t come up all that often, but when it does, this new opinion for the Ninth Circuit should be very helpful to male employees who find themselves in a similar situation.