A ruling issued by all 11 jurists on the US 9th Circuit Court of Appeals reinstated the discrimination lawsuit filed by Medina Rene, a former butler, against the MGM Grand Hotel in Las Vegas, according to a story in The Recorder.
“That the harasser is, or may be, motivated by hostility based on sexual orientation is … irrelevant, and neither provides nor precludes a cause of action,” Circuit Judge William Fletcher wrote in a lead opinion joined by four judges. “It is enough that the harasser [has] engaged in severe or pervasive unwelcome physical conduct of a sexual nature.”
Four judges disagreed, arguing that Title VII of the 1964 Civil Rights Act doesn’t provide protections for sexual orientation discrimination.
“If sexual orientation is to be a separate category of protection under Title VII,” Judge Procter Hug Jr. wrote for the dissenters, “this is a matter for Congress to enact.”
In his lawsuit, Rene claimed that his MGM Grand supervisor and several fellow employees on an all-male staff subjected him to a hostile work environment between 1993 and 1996 because he is gay. He said his co-workers whistled at him, blew kisses, called him sweetheart and touched his body “like they would to a woman.”
Overturns Three-Judge Panel Decision
US District Judge Philip Pro in Las Vegas had granted the hotel’s request to dismiss Rene’s suit, concluding that Title VII applies only to gender bias and not sexual orientation discrimination.
A three-judge 9th Circuit panel ruled 2-1 last year to uphold Pro. That group ruled that sexual orientation is simply irrelevant for the purposes of Title VII.
The latest appeals ruling effectively reverses last year’s decision.
“The premise of a sexual touching hostile work environment claim is that the conditions of the work environment have been made hostile ‘because of sex,'” Fletcher wrote in the latest ruling. “The physical attacks to which Rene was subjected, which targeted body parts clearly linked to his sexuality, were ‘because of sex.'”
“Rene’s tormentors,” Fletcher continued, “did not grab his elbow or poke their fingers in his eye. They grabbed his crotch and poked their fingers in his anus.”
The case is Rene v. MGM Grand Hotel Inc., 02 C.D.O.S. 9823.