Gay Man’s Sexual Harassment Lawsuit Ruled Worthy of Trial

A butler who claims he was harassed on the job at the MGM Grand Hotel in Las Vegas because he is gay is entitled to a trial against the nation’s second-largest casino company, a federal appeals court in San Francisco held Tuesday in a precedent-setting decision.

The 7-4 ruling by the U.S. 9th Circuit Court of Appeals overturned two earlier decisions holding that workers are protected under federal law against discrimination based on color, race, religion, gender or national origin, but not sexual orientation.

Whether a worker is gay or straight is “irrelevant” to the protections provided by Title VII of the nation’s civil rights laws, wrote Judge William A. Fletcher. “It is enough that the harassers have engaged in a severe or pervasive unwelcome physical conduct of a sexual nature.”

Neither the U.S. Supreme Court nor any other federal appellate court has addressed the issue. Previously, the Supreme Court had ruled that federal law prohibits same-sex harassment, but that case did not deal with sexual orientation.

Los Angeles attorney Jon Davidson of Lambda Legal Defense and Education Fund, who filed a friend-of-the-court brief on behalf of Medina Rene, said the ruling could have broad ramifications.

“The court was clear that lesbians and gay men are equally protected from sexual harassment on the job” and the ruling will make it easier for them to win harassment cases,” Davidson said. “A significant amount of anti-gay harassment is sexual in nature and is rooted in gender stereotypes,” he said.

The suit stems from events that allegedly occurred on the hotel’s 29th floor, which was reserved for high rollers.

Over a two-year period, Rene alleged, co-workers subjected him to crude jokes, called him muneca (Spanish for “doll”), forced him to look at pictures of naked men having sex, grabbed his crotch and touched him in other ways that he found offensive.

In his deposition, Rene stated that co-workers teased him about the way he walked, and whistled and blew kisses at him “like a man does to a woman.”

In an interview Tuesday, Rene said the harassment and the casino’s failure to stop it were hard on him.

“I cried. I couldn’t sleep. I said to God, ‘This isn’t happening,’ ” Rene said in a telephone interview from Fort Lauderdale, where he is now a waiter. If proved, such conduct clearly would constitute “an objectively abusive working environment” of a “sexual nature,” Fletcher wrote

Fletcher cited a 1998 U.S. Supreme Court case that expanded federal civil rights law by prohibiting same-sex harassment. The ruling stemmed from claims made by a Louisiana man who quit his job on an offshore drilling platform after he was ridiculed, grabbed and threatened repeatedly with rape in a shower by two male supervisors.

Before that decision, some contended that valid harassment claims could be filed only by women alleging that men had mistreated them.

“There will be close cases on the question of what constitutes physical conduct of a sexual nature, for there are some physical assaults that are intended to inflict physical injury, but are not intended to have (and are not interpreted as having) sexual meaning,” Fletcher wrote. “But this is not such a case .... Rene has alleged a physical assault of a sexual nature.”

Fletcher’s plurality opinion was joined by four other judges. Two other judges also agreed that Rene was entitled to a trial, saying he should have his day in court because he alleged viable claims of “gender stereotyping harassment.”

The dissenters, led by Judge Procter Hug Jr., reiterated the position Hug took when he wrote the earlier 2-1 majority decision in the case a year ago: Harassment of gays and lesbians based on sexual orientation is “appalling” and “noxious” but does not violate federal law. Hug said the majority decision mischaracterized federal law and Supreme Court decisions interpreting it.

“I’m happy now because I’m doing something for mankind,” Rene said. He said he sued “because I don’t want this to happen to anybody else. God made everybody equal. We all bleed the same color. It’s not just Las Vegas. It’s the country. People think it’s a joke and it’s not a joke.”

Rene testified recently before a congressional panel in support of a measure to expand federal anti-discrimination laws by adding protections for gays.

MGM Mirage, the hotel’s parent company, is evaluating its next move, said Shelly Mansolt, vice president of corporate communications.

“The allegations set forth in [Rene’s] complaint have never been before a jury and therefore have not been established,” Mansolt said. “We do not believe the evidence in the case will support Mr. Rene’s position.”

The ruling is applicable in the nine states, including California, within the 9th Circuit’s jurisdiction. California and three other states within the 9th Circuit--Hawaii, Nevada and Oregon--have state laws permitting sexual harassment suits of this kind.