Ninth Circuit Rejects Employee’s Claim of Harrassment Based Solely on Sexual Orientation

In Rene v. MGM Grand Hotel, Inc., 2001 WL 300595, the Ninth Circuit Court of Appeals denied a male employee’s claim of gender discrimination, where the employee claimed he was harassed by his male co-workers and supervisor solely because he is gay.

Employee, Medina Rene, who is openly gay, worked as a butler for Employer, MGM Grand Hotel. Employee presented extensive evidence that his supervisor and several of his co-employees subjected him to a hostile work environment because he is gay. Employee’s complaints to Employer did not result in any action on Employee’s behalf. Employee therefore filed a complaint against Employer alleging sexual harassment in violation of Title VII. The district court granted summary judgment to Employer, finding that Title VII’s prohibition against gender discrimination applies only to discrimination based on gender and does not extend to discrimination based on sexual orientation. Employee appealed.

The Ninth Circuit Court of Appeal rejected Employee’s argument that the United States Supreme Court, in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), impliedly held that discrimination based on sexual orientation is actionable under Title VII. Acknowledging that Oncale involved same sex harassment by co-employees similar to the harassment that Employee suffered, the Court of Appeals noted that the sole issue before the Supreme Court in Oncale was whether same-sex sexual harassment could ever be actionable under Title VII. The Court of Appeals emphasized that, although the Supreme Court answered “yes” to the question before it, the Supreme Court cautioned that Title VII is directed only at discrimination because of gender – it is not enough for a Title VII plaintiff to show that the words used have sexual content or connotation; the plaintiff must always prove that the conduct actually constituted discrimination because of gender.

Relying on Oncale, the Court of Appeals found that Employee failed to prove any of the Supreme Court’s three examples of actionable same-sex discrimination based on gender.

  1. The harasser was motivated by sexual desire. Proof of this was absent, considering that Employee’s harassers sought to humiliate him because of his sexual orientation
  2. The harasser was motivated by general hostility to the presence of men in the workplace. Again, proof of this was lacking considering that all of the other employee’s on the floor on which employee worked were also men
  3. Evidence of how the alleged harasser treated members of both sexes in a mixed-sex workplace. Again, the Court of Appeals found that proof was absent because only men were employed on the floor on which Employee worked.

The Court of Appeals concluded that, although Employee’s evidence would support a finding that Employee was harassed because of his sexual orientation, the evidence would not support a finding of harassment because of gender. Therefore, his Title VII claim failed.

The decision in this case included a strong dissent which pointed out that the facts of Oncale and this case are so similar that the same result should have been reached, i.e., that Employee could pursue a Title VII claim for gender discrimination based on sexual harassment. Although the employee in Oncale was not openly gay, the dissent stated that “surely” this difference “is not enough to defeat his Title VII claim.” The dissent further opined that same-sex sexual harassment cases should be treated the same as male-female sexual harassment where the act of harassment itself usually permits an inference of gender discrimination. As to the majority’s reliance on the three examples of discrimination, the dissent noted that this list is not an exhaustive list of meritorious Title VII claims. While acknowledging that gay-baiting insults and teasing are not actionable under Title VII, the dissent stated that a line is crossed when the harassment is physical and sexual as it was in this case. Finally, the dissent rejected the majority’s statement that Rene had state tort remedies available to him, because, as the dissent pointed out, the statute of limitations had run on those claims.

It should be noted that the words “sexual orientation” were recently added to Government Code Section 12920 as part of the California Fair Employment & Housing Act (FEHA). Thus, under California Law sexual orientation is protected from employment discrimination.