Workplace harassment of gays and lesbians because of their sexual
orientation is "appalling" but does not violate federal law, a federal appeals
court ruled yesterday.
The 2-to-1 decision by a U.S. Court of Appeals panel in San Francisco has
little effect in California, where state law forbids job discrimination or
harassment based on sexual orientation.
But only 10 other states and the District of Columbia have such laws, and
some of those offer limited remedies. Nevada, where yesterday's case arose,
banned job discrimination against gays and lesbians in 1999, but victims can
sue only for back pay and no other damages, said the plaintiff's lawyer in the
Gay rights advocates have been trying to persuade Congress to pass an anti-
discrimination law for 20 years and have little hope of immediate success in
light of President Bush's stated opposition. But the U.S. Supreme Court has
allowed suits for same-sex harassment, in some circumstances, as a form of
discrimination based on gender -- the issue in yesterday's case.
Medina Rene, a gay man who worked as a butler at the MGM Grand Hotel in Las
Vegas, said his supervisor and co-workers, all of them men, subjected him to
crude harassment on nearly every workday between February 1994 and February
He said they grabbed his crotch, poked him, made him look at pictures of
naked men having sex, whistled and blew kisses at him and called him
"sweetheart," among other things. Rene said he complained to higher-ups to no
After leaving the job, Rene sued the hotel in 1997 under a section of the
federal Civil Rights Act that provides damages of up to $300,000 for
employment discrimination based on sex.
A year later, the Supreme Court ruled in a separate case that the law
applied to some instances of same-sex harassment: if, for example, it was
motivated by sexual desire or sexual hostility, or if the harasser treated men
and women differently. The San Francisco-based appeals court, which oversees
federal courts in nine Western states, has also ruled that abuse of an
employee for failing to fit sexual stereotypes is sex discrimination.
But in upholding a federal judge's dismissal of Rene's suit, the appellate
panel said his claim that he was harassed solely because of his sexual
orientation is not covered by federal law.
"The degrading and humiliating treatment Rene contends that he received
from his fellow workers is appalling," said the majority opinion by Chief
Judge Procter Hug. "However, this type of discrimination, based on sexual
orientation, does not fall within the prohibitions" of the ban on sex
Dissenting Judge Dorothy Nelson argued that same-sex harassment amounts to
sex discrimination "when the abuse is physical and sexual." The effect of the
alleged attacks was "to humiliate Rene as a man," and the motives, gender or
sexual orientation of his assailants should not affect his ability to sue,
Rene's lawyer, Richard Segerblom, said he would ask the full court for a
rehearing, arguing that his client was the victim of sexual assaults that
should be considered sex harassment.
©2001 San Francisco Chronicle