The EEOC reverses summary judgment on a female-on-male, co-worker Title VII harassment claim, in an opinion containing out-of-date pop cultural references (particularly to an notorious one-hit wonder from the 1990s), some purply prose, and a hasty mis-phrasing that appears to shift the burden of proof to the employer on one element of the EEOC’s claim.
EEOC v. Prospect Airport Services, No. 07-17221 (9th Cir. Sept. 3, 2010): A female, married co-worker attempted to proposition and seduce a male co-worker who – because of his Christian morality, and the recent death of his wife – found the attention appalling. The Ninth Circuit reverses a district court opinion that placed undue weight on the idea that most men seemingly would find the attention exciting, rather than harassing.
The campaign began with little love notes to the male employee (named Lamas), and escalated (against his complaints) to a picture of the alleged harasser (named Munoz), more explicit comments and notes, cat-calling and the eventual involvement of co-workers who jeered at Lamas for not picking-up on Munoz’s attentions and who openly speculated that he was gay. He felt so ground down by the behavior that his work performance deteriorated and eventually he was terminated.
The company’s reaction was remarkably slack. The immediate boss, Ronda Thompson, allegedly promised to take steps to stop the harassment but did nothing. The next level boss allegedly told Lamas that he “did not want to get involved in personal matters.” In the end, Lamas went to four managers who collectively accomplished pretty close to nothing. “Patrick O’Neill, Prospect’s assistant general manager, said the harassment ‘was a joke’ and that Lamas should ‘walk around singing to yourself . . . I’m too sexy for my shirt [ed. note – Billboard No. 1, debut single in 1991 for the U.K. band, Right Said Fred, an act that never charted in the U.S. Top 40 again].‘”
The Ninth Circuit reverses summary judgment. The court finds that the EEOC created a genuine issue of material fact on all disputed elements of its case. The conduct was clearly motivated by sex. The key disputed issues were whether the behavior was welcome and severe-or-pervasive. On the former, the panel rejects the presumption that men favor sexually-aggressive attention:
“It would not make sense to try to treat welcomeness as objective, because whether one person welcomes another’s sexual proposition depends on the invitee’s individual circumstances
and feelings. Title VII is not a beauty contest, and even if Munoz looks like Marilyn Monroe [ed. note – born Norma Jeane Mortenson (1926 – 1962)], 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. [ed. note – I’m pretty sure I would have stopped here.] 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. [ed. note – groan!]“
The panel also finds that six months of persistent propositioning combined with the co-workers taunts presented a genuine issue of material fact about pervasiveness.
Inexplicably, in conclusion, the panel would place the burden of proof on the employer to prove that it used appropriate measures to arrest the co-worker harassment. “Prospect’s actions were not enough to establish an affirmative defense for Prospect. . . . Prospect did nothing about Munoz, instead telling Lamas to console himself by saying ‘I’m too sexy for my shirt.’ Men as well as women are entitled under Title VII to protection from a sexually abusive work environment. Lamas submitted evidence that Prospect knowingly denied him protection.” [Emphasis added.] Although Faragher/Ellerth makes the exercise of due care an affirmative defense to vicarious liability in supervisor harassment cases, it has never been so held in the co-worker arena (well, maybe until now).