Stereotyping and “Reverse” Sexual Harassment

male_and_female_silver_3Claims of sexual harassment made by males has been on the rise. Allegations of male-to-male harassment, especially, are becoming increasingly common. Female-to-male harassment claims, though, are less common. And that’s why a recent decision from the Ninth Circuit is particularly noteworthy for employers.

In EEOC v. Prospect Airport Services, Inc., the male plaintiff and the female alleged harasser both worked as passenger assistants (helping passengers who need wheelchairs) at McCarran International Airport. The plaintiff, Rudolpho Lamas, was a recent widower.  His alleged harasser, Sylvia Munoz, was married.

After Munoz propositioned Lamas repeatedly, Lamas reported her conduct to the company’s assistant manager.  The manager responded that Lamas (the victim), should tell Munoz to stop and let management know if she didn’t stop. Lamas had already told Munoz that he was not interested, but, following his supervisor’s advice, he told her again. This did not work; Munoz gave Lamas a second note expressing interest in a relationship with him and then tried to give him a picture of herself. Lamas next asked his immediate supervisor for help, but she did nothing.

Munoz gave Lamas a third note that was even more aggressive and explicit. By this time, Munoz had told other co-workers of her interest in Lamas, and they began lobbying him on her behalf. He told them he was not interested, and began feeling embarrassed. Lamas went to the next supervisor up the chain, gave him the note, and asked him to make Munoz stop. The supervisor said he did not want to get involved in personal matters but he agreed to speak to Munoz as a “favor” to Lamas, acknowledging that the latest “love letter” was a violation of the company’s sexual harassment policy. The supervisor spoke to Munoz and warned her to stop, but she didn’t stop.

Munoz began making suggestive remarks and gestures whenever she was around Lamas, on a daily basis. Lamas began to feel oppressed and offended by the constant pressure from Munoz. She had co-workers tell him that she was going to “get him” no matter what. Co-workers began to speculate that Lamas was gay because of his negative response to Munoz. Lamas consulted a psychologist about his emotional distress; he felt helpless and cried.

Lamas complained to four different managers. The company’s general manager said the situation was a joke and that Lamas should walk around singing to himself, “I’m too sexy for my shirt.”

Although before Munoz’s advances began, Lamas had been performing well, his performance deteriorated as the harassment went on, and eventually he was let go for poor performance.

Lamas filed a charge of discrimination with the EEOC, which eventually filed suit on his behalf. The district court granted summary judgment in favor of the employer, holding that Lamas had admitted that a “reasonable man” would not have found Munoz’s conduct to be so severe or pervasive as to constitute harassment, although Munoz did because of his “Christian background.”

The EEOC appealed, and the Ninth Circuit reversed, finding that Munoz subjected Lamas to conduct of a sexual nature. With regard to whether the conduct was unwelcome, as it must be to be illegal, the court wrote:

It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome. Lamas suggested this might be true of other men (the district court decision noted that Lamas “admits that most men in his circumstances would have ‘welcomed’ “ her advances). But that is a stereotype and welcomeness is inherently subjective, (since the interest two individuals might have in a romantic relationship is inherently individual to them), so it does not matter to welcomeness whether other men might have welcomed Munoz’s sexual propositions.

The court also decided that a reasonable jury could find that the conduct was severe or pervasive enough to create an environment that Lamas reasonably perceived as hostile and abusive, and that the employer’s response was not sufficient, since it had taken no disciplinary action at all against the alleged harasser.

The lessons here are clear: Both men and women are protected from sexual harassment, and both should be subject to discipline for violating their employer’s sexual harassment policy. And, employers should not allow stereotypes about either women or men to guide employment decisions.

See also:

Employee Handbooks: Anti-Harassment Tip Sheet

3d Circuit: Who Is a “Supervisor” for Purpose of Imputing Harassment Liability

The Death of a Sexual Harassment Policy