By Lindy Korn
The Daily Record Newswire
A male employee who claimed he received unwelcome romantic advances from a female co-worker can sue for sexual harassment, the U.S. Court of Appeals for the Ninth Circuit has ruled in reversing a dismissal. EEOC v. Prospect Airport Services, No. 07-17221. Sept. 3.
Plaintiff Rudolpho Lamas and the alleged harasser, Sylvia Munoz, worked for Prospect Airport Services Inc. at McCarran International Airport in Las Vegas, where they helped passengers who needed wheelchairs.
Lamas was promoted from passenger service assistant to lead passenger service assistant. His wife died Sept. 17, 2001, so at the times relevant to the case, he was a recent widower. He started working for Prospect the next spring, in April 2002.
That fall, Munoz, who was married, began a series of rejected sexual overtures including notes such as:
Munoz said she was “turned on” and wanted to “go out,” which Lamas interpreted as a “basic flirtation come-on” and an “unwarranted flirtatious advance.” He told her he was not interested, and he informed their boss about the statements, who told him to tell Munoz the romantic interest was not mutual, and to let him know if it continued.
A few days later, Munoz handed Lamas a second note, which stated she was serious and he should give her a chance.
Munoz approached Lamas in the parking lot and handed him a picture of her, “a head and shoulders-type shot with a pressing together of the breasts, no clothing on that portion, the cleavage of the breasts sort of together.” Lamas gave the picture back to Munoz and told her “I’ve already told you, I’m not interested.”
Munoz gave Lamas a third note. At that point he said he felt his work environment had become abusive. Munoz wrote to Lamas that she was having “crazy dreams about us in the bathtub” and boasted that she gave a “very good bath wash and body massage.” Lest there be any doubt, Munoz said, “I do want you sexually and romantically.”
The district court granted Prospect’s motion for summary judgment and concluded as a matter of law that Munoz’s conduct was not severe and pervasive enough to amount to sexual harassment objectively for a reasonable man, noting Lamas admitted that most men in his circumstances would have “welcomed” the behavior he alleged was discriminatory. Due to his Christian background, he was “embarrassed,” he said. The court emphasized that Lamas had never filed a written complaint, and that management had told Munoz her behavior was inappropriate.
The Ninth Circuit concluded that an objective standard does not control the determination of “welcomeness” under Title VII: “It would not make sense to try to treat welcomeness as objective because whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances and feelings. Title VII is not a beauty contest, and even if the co-worker looks like Marilyn Monroe, the plaintiff might not want to have sex with her, for all sorts of possible reasons.”
The court further decided the co-workers’ alleged conduct was sufficiently severe and pervasive to alter the conditions of the plaintiff’s employment and create an abusive working environment. The Ninth Circuit determined Prospect’s actions were not enough to establish an affirmative defense, holding that “if the employer fails to take even the mildest form of disciplinary action the remedy is insufficient under Title VII.”
The court’s rejection of welcomeness being looked at by how most men would have reacted as constituting a stereotype is significant. The statement that unwelcomeness must be communicated makes sense from a subjective and objective determination. Perhaps most importantly, the appeals court stated that welcomeness is a credibility issue.
The decision is gender-important.
Lindy Korn practices at The Law Office of Lindy Korn and can be reached at Lkorn@diversitytraining.com or (716) 845-5500.
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