Ninth Circuit Finds Female Employee's Unwelcome Advances On Male Colleague Potentially Actionable
Last week, the Ninth Circuit confirmed that men are equally entitled to protection under Title VII from a sexually abusive work environment. Equal Employment Opportunity Comm'n v. Prospect Airport Servs., Inc., No. 07-17221, 2010 U.S. App. LEXIS 18447 (9th Cir. Sep. 3, 2010). The court held that a female co-worker's repeated sexual advances to a male colleague can form a prima facie case of sexual harassment where the man informed her the conduct was unwelcome and repeatedly complained to various supervisors, who did not take steps to stop her behavior. The Circuit panel reversed the district court's grant of summary judgment for the employer.
Over a six-month period, Sylvia Munoz, who was married, sent notes of an explicit sexual nature to her male colleague at Prospect Airport Services, Rudolpho Lamas. The notes became more frequent as he continued to deny any interest in her. Munoz began to involve co-workers, asking them to deliver her notes to Lamas and to tell him of her attraction to him. As Lamas continued to reject Munoz, saying that as a Christian and a recent widower, and did not want to be involved with a married woman, rumors spread at the workplace that he was homosexual, which increased his discomfort. He began seeing a psychologist and alleges that his work performance suffered. While Lamas had once been chosen to be the key employee in charge of saving an important contract with Southwest Airlines, he was later demoted and fired due to his poor performance and negative attitude. Lamas testified that the stress caused by the six months of Munoz's harassment caused the decline in his performance.
Although he had repeatedly complained to at least three separate supervisors, asking them to make Munoz stop sending him notes and messages, his complaints resulted in just one warning to Munoz that she should stop pursuing Lamas. After that warning, Munoz's advances continued, as did Lamas's complaints to management. But the employer's assistant general manager advised Lamas that the harassment "was a joke" and that Lamas should "walk around singing to yourself . . . I'm too sexy for my shirt." The supervisors' failure to take action contravened both Prospect's written sexual harassment policy, which required prompt investigation and discipline where warranted, as well as Prospect's history of having disciplined men for sexual harassment of women, including two past firings.
The district court had granted Prospect's motion for summary judgment, concluding that as a matter of law, Munoz's behavior was not severe and pervasive enough to constitute sexual harassment for a reasonable man. It noted that Lamas admitted that "most men in his circumstances would have ‘welcomed' the behavior he alleged was discriminatory but that, partially due to his Christian background, he was ‘embarrassed.'"
The Ninth Circuit reversed. The court held that it "cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome" and noted that "even if Munoz looks like Marilyn Monroe, Lamas might not want to have sex with her, for all sorts of possible reasons." Significantly, welcomeness cannot be measured objectively, but depends on an individual employee's circumstances and feelings. So long as he communicates that the behavior is unwelcome, the employer may be liable for not stopping it.
Although the behavior here was not severe in the sense that there was almost no physical contact, a work environment may still be actionably hostile even where the conduct consists only of pervasive remarks over an extended period of time (citing Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1005 (9th Cir. 1998)). Moreover, Munoz's behavior was extremely pervasive, and "the required level of severity of seriousness varies inversely with the pervasiveness or frequency of the conduct."
The court pointed to the effect of Munoz's conduct on Lamas - that he began crying at work, sought psychological help, and that the quality of his work deteriorated - and to Prospect's failure to protect Lamas in any way other than to tell him to console himself by saying "I'm too sexy for my shirt." Prospect failed to take "even the mildest form of disciplinary action," and knew that its responses were having no effect on Munoz's advance, such that as a matter of law, the remedy was insufficient under Title VII. The court concluded that a jury could reasonably find that Prospect knew about the harassment and that its response was inadequate. This possibility created a genuine issue of material fact that precluded summary judgment for the employer.
This decision reminds employers that any complaints of sexual comments or behavior should be addressed promptly and with sufficient deterrence to end the behavior. The relative genders of the involved parties may not diminish that urgency.
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