Sexual harassment claims filed by men are on the rise. The EEOC reports that such claims now comprise more than sixteen percent of all sexual harassment claims, up from just eight percent in 1990. In a recent federal case, EEOC v. Prospect Airport Services, Inc., the Ninth Circuit Court of Appeals emphasized that the law requires employers to treat complaints of sexual harassment made by men with the same seriousness they apply to complaints made by women.
In April 2002, Prospect hired Rudolpho Lamas as a Passenger Service Assistant. A few months earlier, Lamas' wife had passed away. Initially, Lamas enjoyed his employment with Prospect, and he was even promoted to the position of Lead Passenger Service Assistant.
In the fall of 2002, things began to change when one of Lamas' coworkers, Sylvia Munoz, began expressing sexual interest toward him. In November 2002, Munoz gave Lamas a note telling him she was "turned on," and asking him to "go out" with her. Lamas responded by telling Munoz that he was not interested. Lamas also told Prospect's Assistant General Manager, Patrick O'Neill about the note. O'Neill recommended that Lamas tell Munoz that her interest in him was not mutual, and to inform Prospect's managers if Munoz continued. Lamas took O'Neill's advice, and again told Munoz that he was "just not looking for any kind of thing like that right now…"
Undeterred, Munoz soon presented Lamas with another note. This second note asked Lamas to give Munoz a chance. Lamas threw the note away, and gave Munoz no response. Soon after, Munoz found Lamas in the parking lot and gave him a provocative picture of herself. Lamas gave the picture back to Munoz and stated "I've told you already, I'm not interested." Lamas also spoke to his immediate supervisor, Ronda Thompson, and told her that Munoz was making unwanted advances, and that things were "out of hand." Thompson promised to talk to Munoz, and to inform Prospect's General Manager about the problem, but she did neither.
Soon after, Munoz gave Lamas another note. In the note, she offered to give Lamas a "very good bath wash and body massage, and noted "[s]eriously, I do want you sexually and romantically!" Around this time, Munoz had apparently gotten coworkers involved, as they began telling Lamas that Munoz loved him and wanted him.
In early 2003, Lamas called Dennis Mitchell, Prospect's General Manager, to inform him of Munoz's behavior. Mitchell told Lamas he "did not want to get involved in personal matters," but agreed to talk to Munoz "as a favor" to Lamas. Mitchell later met with Munoz and told her that he knew that she was pursuing a male coworker, and that the coworker wanted the advances to stop. He also warned her that if he heard that she was continuing her pursuit of the male coworker, he would have to take action.
After Munoz met with Mitchell, her behavior only intensified. Each time she walked by Lamas at work, she made some kind of suggestive comment or gesture. And on one occasion, in front of two elderly passengers, she asked Lamas out and informed him that she was lacking in sexual gratification because she was separated from her husband. Around this time, Lamas' coworkers began to make remarks to Lamas indicating that they thought he was gay, apparently because he was uninterested in Munoz's advances. Lamas continued to complain to Prospect's management. When he complained to O'Neill about Munoz's behavior, O'Neill stated that he should view the harassment as "a joke," and should walk around singing "I'm too sexy for my shirt."
Around this time, Lamas' job performance began to deteriorate. In March of 2003, Prospect demoted Lamas due to complaints about his job performance and his negative attitude. Lamas attributed his change in performance to Munoz's behavior and Prospect's failure to stop it. In June of 2003, Prospect fired Lamas for failing to provide wheelchair assistant to a passenger, poor attitude, and unwillingness to provide quality customer service.
The EEOC Takes on Lamas' Case
After his termination, Lamas filed a complaint against Prospect with the Equal Employment Opportunity Commission. The EEOC determined that Lamas was subject to a sexually hostile work environment, and sued Prospect. Prospect moved to dismiss the case at the summary judgment stage. The District Court granted Prospect's motion, finding that Munoz's alleged harassment was not "severe and pervasive," and that that the EEOC failed to demonstrate that Prospect did not take adequate steps to address Munoz's conduct. In making this decision, the District Court relied on the fact that Lamas admitted that most men in his situation would have "welcomed" Munoz's behavior, but that he felt "embarrassed" about it because he is a Christian. The District Court also found that Munoz's behavior did not stop him from performing the basic requirements of his job, and that Lamas had never made a formal sexual harassment complaint to Prospect.
The EEOC appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit found that in order to survive summary judgment, a plaintiff must show: 1) he was subjected to verbal or physical conduct of a sexual nature; 2) the conduct was unwelcome; and 3) the conduct was sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive work environment. First, the Ninth Circuit found that Lamas was clearly subjected to verbal or physical conduct of a sexual nature.
Next, the Ninth Circuit addressed whether Munoz's conduct was unwelcome. First, the Court found that it "cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome." The Court found that this is simply an old stereotype, and in reality, welcomeness is subjective, because whether an individual is receptive to another person's sexual overtures depends on the individual's personal circumstances and feelings. As the Court put it:
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. He might feel that fornication is wrong, and that adultery is wrong as is supported by his remark about being a Christian. He might fear her husband. He might fear a sexual harassment complaint or other accusation if her feelings about him changed. He might fear complication in his workday. He might fear that his preoccupation with his deceased wife would take any pleasure out of it. He might just not be attracted to her. He may fear eighteen years of child support payments. He might feel that something was mentally off about a woman that sexually aggressive toward him. Some men might feel that chivalry obligates a man to say yes, but the law does not.
However, the Court found that welcomeness is also objective in the sense that it must be clearly communicated. In this case, the Court found that Lamas established a genuine issue of fact regarding whether Munoz's conduct was welcome, in that Lamas repeatedly told Munoz that he did not want a relationship with her.
Next, the Court addressed the question of whether Munoz's conduct was sufficiently severe or pervasive to alter the conditions of Lamas' employment and create an abusive work environment. The Court found that whether a working environment is abusive can only be determined by looking at all the circumstances, including the frequency and severity of the conduct. Because only an employer can change terms and conditions of employment, the Court noted that sexual harassment will rarely be found when the employer takes appropriate action upon learning of the harassment.
In Lamas' case, the Court found that Lamas perceived his working environment to be abusive, as evidenced by his complaints to several of Prospect's managers, and his repeated statements to Munoz that did not want a relationship with her. Objectively, the Court also found that the EEOC had established a question for the jury, because, although Munoz's conduct was "not severe, as these cases go," it continued over an extended period of time. Moreover, the Court found that a jury could reasonably find that Prospect knew about Munoz's conduct, and that its response was inadequate. In making this determination, the Ninth Circuit focused on the fact that Thompson failed to talk to Munoz about Lamas' complaints, and on O'Neill's statements to Lamas that the harassment was "a joke," and that he should sing "I'm too sexy for my shirt."
This case emphasizes the importance of treating complaints of sexual harassment by men seriously. As the Ninth Circuit stated, the fact that many men may have been receptive to Munoz's sexual interest did not relieve Prospect of its duty to address Lamas' complaints. Moreover, the case also highlights the need to thoroughly train supervisors regarding their responsibilities when they receive complaints of sexual harassment, regardless of the gender of the employee making the complaint. As the Ninth Circuit noted, only employers can change the terms and conditions of employment, and this will rarely occur if the employer takes appropriate action upon learning of the harassment allegations. In this case, the fact that one Prospect manager did nothing about Lamas' complaint, and another told him to take it as a joke or a compliment, did little to demonstrate that Prospect took Lamas' complaints seriously.
This article was written by Brianne Marriott, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore (LCW). Ms. Marriott is an Associate in the Fresno office and can be reached at (559) 256-7800 or firstname.lastname@example.org. For more information regarding the discussion above or on our firm please visit our website at www.lcwlegal.com, or contact one of our offices below.
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