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Ninth Circuit Expands Coverage of Title VII’s Prohibition of Sexual Harassment

Volume 1, Issue 10
October 6, 2013

Court Finds that Employee Can Bring Claim of Sexual Harassment Under Title VII, Even Though Harassment Purportedly Based on Employee's Sexual Orientation

In a September 24, 2002 decision, the Ninth Circuit appears to have expanded the protections of Title VII by holding that an employee of the MGM Grand Hotel could move forward with his claim of sexual harassment, even though the employee asserted that the harassment was motivated by his sexual orientation.

Medina Rene, an openly gay male, was a hotel butler who worked in an all-male environment on the MGM's V.I.P. floor. He claimed that he was often treated like a woman through a variety of demeaning comments from fellow male employees, and further claimed that he was subject to physical contact of a sexual nature. Rene stated in pleadings that the conduct was based upon his sexual orientation. The trial court concluded that Rene failed to state a cognizable Title VII claim, stating "Title VII's prohibition of sex discrimination . . . is not extended to discrimination based on sexual preference."

Previously in Oncale v. Sundowner Offshore Services, Inc., the U.S. Supreme Court held that same-sex harassment can be actionable under Title VII; however, it did not hold that same-sex harassment because of sexual orientation is actionable under Title VII. In other words, the Court stated that in order for harassment to be actionable it must be based upon discrimination of a person's sex. However, in writing the plurality opinion of the Ninth Circuit in this case, Judge William Fletcher stated that "[w]e would hold that an employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment." In Judge Fletcher's opinion, "[t]hat the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action." Under this view, the underlying motives for the harassing conduct are apparently irrelevant as long as the harassment constitutes "physical conduct of a sexual nature" akin to that inflicted on Rene.

With this decision, the Ninth Circuit has housed the inquiry in Title VII sexual harassment cases to the conduct at issue, regardless of its underlying motivation. As such, the decision should re-emphasize for Nevada employers that all claims of harassment must be investigated promptly, and that appropriate remedial action must be taken immediately.

Rene v. MGM Grand Hotel, Inc., Case No. 98-16924 (9th Cir. Sept. 24, 2002).

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