Here's a great female-harasser/male-victim sexual harassment case. That the district court granted summary judgment to the defendant only makes it better. Read the first eight pages of the Ninth Circuit's opinion, which relay the facts. Even before you read any legal analysis, you not only know which way the opinion is coming out, but also know that it's right. This is harassment. Reverse the genders and it's crystal clear to everyone.
It's also a great case for Judge Kleinfeld to articulate his vision. The district court (Judge Dawson up in Las Vegas) granted summary judgment to defendant because the plaintiff admitted that most men would have been psyched by the alleged harasser's offers of sex. But Judge Kleinfeld hits that one out of the park, saying:
"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.
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, 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. 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.
That is not to say that there is nothing objective about welcomeness. For the conduct to be unwelcome for purposes of employer’s liability for not stopping it, unwelcomeness has to be communicated. Sometimes the past conduct of the individuals and the surrounding circumstances may suggest that conduct claimed to be unwelcome was merely part of a continuing course of conduct that had been welcomed warmly until some promotion was denied or employment was terminated. That is a credibility issue.
But here Lamas unquestionably established a genuine issue of fact regarding whether the conduct was welcome. Lamas swore under oath that it was not. It made him cry, both at the time and repeatedly in the deposition. He sought medical services to deal with the anxiety it caused him. Lamas had no prior romantic or sexual relationship with Munoz. He did not approach her. He told her expressly and plainly that he did not want a relationship with her. He explained his troubled response plausibly, as stemming from his Christian beliefs and his recent widowhood. Some recipients of sexual advances doubtless have difficulty coming up with a tactful way to refuse them without damaging their ability to get along at work, so unwelcomeness may in some cases be unclear. Here, though, Lamas repeatedly told Munoz 'I’m not interested' and that he was 'just not looking for any kind of thing like that' yet she kept making the sexual overtures she knew were unwelcome."
Yep yep yep.
Now, I'm not sure that the line about "eighteen years of child support payments" really applies to Munoz's alleged offer to give Lamas a blowjob, since last I checked things don't work that way, or that many men really feel that chivalry obligates them to accept whatever sexual offers come their way from married women they're not attracted to, but those are nits. Judge Kleinfeld has a larger point that seems right on. You can't bounce a case because a man -- or most men -- do or should "want it" from their co-workers. Any more than you could or should do so if the roles were reversed.
Good facts. Good law. Good case.
P.S. - It also proves that, notwithstanding the slogan, what happens at Vegas -- even at the airport there -- does not necessarily stay in Vegas. Sometimes it matters elsewhere. Including but not limited to an oral argument in San Francisco.
