Ninth Circuit Reinstates Male Worker’s Harassment Claim

A federal trial court in Nevada apparently couldn’t believe that a woman’s sexual overtures to a male coworker would ever be unwelcome and rejected the Equal Employment Opportunity Commission’s (EEOC) attempt to file a harassment suit on his behalf. But in a recent decision, the Ninth U.S. Circuit Court of Appeals (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) disagreed. Sexual harassment laws protect men on the same basis as women.

Woman Preys on Male Coworker

Rudolpho Lamas and Sylvia Munoz both worked for Prospect Airport Services, Inc., which provided wheelchair assistance to passengers at McCarran Airport in Las Vegas. Lamas had been recently widowed when Prospect hired him in 2002. Within a few months, Munoz, who was married, began a series of sexual overtures to Lamas, all of which he rejected.

Munoz had heard from another coworker that Lamas had said he missed coming home to a family, and Lamas himself had mentioned to her that he was single. She interpreted that as flirtation, even though he had never expressed any interest in her. Munoz decided to give Lamas a note in which she told him she was “turned on” and wanted to “go out.” Lamas interpreted the note as a come-on and told her he wasn’t interested. He also told Prospect’s assistant general manager, Patrick O’Neill, about the situation and that the note bothered him. O’Neill encouraged him to make his lack of interest clear to Munoz and to let him know if her behavior continued.

Lamas took O’Neill’s advice and told Munoz that he wasn’t interested; she was married, and he didn’t want to be involved in that type of situation. But Munoz wasn’t deterred. She gave him a second note in which she said that she was serious and that he should give her a chance. After Lamas threw the note away, she approached him in the airport parking lot and handed him a picture of herself. The photo portrayed her head and shoulders, with her bare breasts pressed together to show her cleavage. He handed the picture back and again told her he wasn’t interested.

By this point, Lamas was irritated and upset with the unwanted advances. He went to his immediate boss, Ronda Thompson, and asked her to follow the company procedure to put a stop to Munoz’s conduct. Although Thompson said she would do so, she didn’t speak with Munoz or follow through with higher-level managers.

Munoz continued her pursuit of Lamas. She gave him a third note in which she said she was having “crazy dreams about us in the bathtub” and boasted that she gave a “very good bath wash and body massage.” Lest Lamas have any doubt, she concluded the note with “Seriously, I do want you sexually and romantically.”

Lamas was embarrassed and upset. Munoz had begun to enlist coworkers in her campaign, and they openly speculated that he must be gay if he wasn’t interested in her. At that point, he went to Dennis Mitchell, Prospect’s top manager at the airport. He showed Mitchell the most recent note and said that he wanted the conduct to stop. Mitchell responded that he “did not want to get involved in personal matters” but agreed to speak to Munoz “as a favor.” He also acknowledged that her conduct violated Prospect’s sexual harassment policy.

But still Munoz pressed on. She had coworkers deliver messages to Lamas. She told them she was going to get him no matter what. She even approached him when he was assisting elderly passengers and told him that she had been lacking in sexual gratification after separating from her husband. The remark embarrassed both Lamas and the passengers.

The emotional impact eventually took a toll on Lamas’ job performance. He had previously done his job well and been promoted to a lead position. Prospect had assigned him to a specific role to make a good impression on Southwest Airlines, which was threatening to end Prospect’s contract. But after months of Munoz’s advances, with no meaningful action by management, Lamas was consulting with a psychologist and found it difficult to concentrate on his job. At times he was reduced to tears at work. Prospect demoted him from the lead role and eventually fired him for poor performance.

Lamas went to the EEOC, which determined that he had been subjected to a sexually hostile work environment. Despite a policy in which Prospect said that any complaints would be investigated promptly and properly, the company had done nothing to stop Munoz’s conduct. Even so, when the EEOC filed suit, the trial court threw out the case, noting that “most men in [Lamas’] circumstances would have ‘welcomed’ the behavior he alleged was discriminatory, but that due to his Christian background he was ’embarrassed.'” The EEOC appealed.

Men Have Same Protections as Women

The Ninth Circuit was straightforward in its analysis of this sexual harassment claim. A sexually hostile work environment violates Title VII of the Civil Rights Act of 1964 if the employee (1) was subjected to verbal or physical conduct of a sexual nature (2) that was unwelcome and (3) that was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.

Applying that standard to Lamas’ situation, Munoz’s overtly sexual overtures easily met the first prong of the test. It was the second prong the trial court had concluded wasn’t satisfied when it noted that most men would welcome such conduct. The Ninth Circuit concluded that the trial court had applied an inappropriate stereotype. Rather than focusing on what “most men” might like, the Ninth Circuit observed that whether a person welcomes the sexual advances of another depends on individual circumstances and feelings. And although “[s]ome men might feel that chivalry obligates a man to say yes, . . . the law does not.”

In Lamas’ case, the Ninth Circuit found that he certainly had presented sufficient evidence that he didn’t welcome Munoz’s conduct. He had repeatedly told her no, and he had complained to various levels of management on four different occasions.

But was the third prong met? Was the conduct sufficiently severe or pervasive to change Lamas’ working conditions? Although not all romantic or sexual propositions rise to the level of a Title VII violation, the evidence showed that Munoz had been “relentless.” Her conduct persisted despite Lamas’ rejections, and she involved coworkers in her campaign. The frequency and persistence of the advances and coworker ridicule amounting to abuse provided an ample basis to conclude that Lamas’ working conditions may have been affected.

Prospect claimed that it shouldn’t be liable for the coworker interactions because Lamas had never filed a written complaint. An employer may have a defense if it promptly investigates and takes remedial action once it knows or should have known that allegedly harassing conduct is occurring. However, neither Title VII nor Prospect’s own policy requires that there be a complaint in writing. Lamas made repeated oral complaints at several levels. Prospect knew of the conduct but took no effective action. One manager even advised him to sing to himself, “I’m too sexy for my shirt.”

In short, the evidence before the court reflected that Prospect had failed in its duty to protect Lamas from the pervasive sexual overtures of Munoz and the ridicule of coworkers. The Ninth Circuit therefore reinstated the EEOC’s lawsuit. EEOC v. Prospect Airport Services, Inc. , Case No. 07-17221 (9th Cir., Sept. 3, 2010).

Bottom Line: Stop Unwelcome Sexual Overtures

Whether the target is a man or a woman, take complaints of unwanted sexual overtures by coworkers seriously. And even in the absence of a complaint, don’t hide your head in the sand if the conduct is observable. Investigate. Take appropriate remedial action. Check back afterward to make sure the conduct has stopped. No employer wants to have its inaction and stereotypical responses highlighted in a court’s opinion. Putting a prompt end to unwanted sexual conduct will not only provide you with a defense but also help you avoid a claim in the first place.