Court Reinstates Suit by Male Worker over Female Coworker Advances

September 7, 2010 ( – The 9th U.S. Circuit Court of Appeals has reversed a lower court’s decision that a female employee’s amorous advances toward a male coworker were not severe and pervasive enough to amount to sexual harassment.

The appellate court said it cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. The U.S. District Court for the District of Nevada, in its opinion, noted that Rudolpho Lamas conceded that another man in his position might welcome married coworker Sylvia Munoz’s advances, but the appellate court said that does not matter to the welcomeness issue for Lamas.  

According to the opinion, Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome, in that he clearly and repeatedly told Munoz he was not interested.   

The appellate court conceded that Munoz’s advances were not severe, as these cases go, but said the Equal Employment Opportunity Commission (EEOC) is correct that the pervasiveness and the inadequate response by the employer established a jury question of whether her overtures led to an abusive environment.   

In addition, the appellate court said the evidence in the record creates a genuine issue of material fact that Lamas’ work was impaired by Munoz’s sexual advances. He reported that he began crying at work, sought medical help for his psychological problem, and the quality of his work deteriorated due to the pervasively abusive environment.   

Finally, the 9th Circuit found Prospect Airport Services’ actions were not enough to establish an affirmative defense for Prospect. Lamas repeatedly brought his concerns to others in management, and a manager told Munoz to stop, but management did nothing about it when Munoz did not stop, and management knew she had not.  

The court noted that Munoz was not disciplined even though men had been fired under the company’s sexual harassment policy.   

After an initial advance in the form of a note by Munoz, Lamas, a recent widower, informed their boss that he was bothered by the “unwanted flirtatious advance.” The boss told Lamas to inform Munoz that he was not interested and to let him know if she continued to bother him.  

After Munoz gave Lamas several more notes and an indecent photograph of herself, Lamas went to his immediate supervisor about the problem and asked her to follow company procedure and “put a stop to it.” The supervisor told him that she would talk to Munoz and would inform Prospect’s general manager, Dennis Mitchell, of the problem, but she did not do either, and Munoz continued harassing Lamas.  

After more advances, Lamas felt his work environment had become abusive, so he talked to Mitchell himself. By now Munoz had recruited co-workers who were telling Lamas that Munoz loved him and wanted him. Mitchell told Lamas that he “did not want to get involved in personal matters,” but still met with Munoz and Lamas’ immediate supervisor and told Munoz that she was violating Prospect’s sexual harassment policy and had to stop or he would take action. She did not stop pursuing Lamas, and coworkers began making remarks to him that he was gay.  

According to Lamas, the psychological distress because of the “constant pressure” from Munoz made his performance suffer, and as a result he was fired.  

The opinion is here.