In what gay-rights groups are calling a landmark decision, a federal appeals court has said that homosexuals can use federal civil rights laws to sue for alleged harassment.
In the case, a hotel butler who was gay claimed his supervisor and co-workers often performed crude pranks targeting his homosexuality, including blowing kisses, telling jokes and grabbing at his genitals. He sued, claiming the actions created a hostile work environment and amounted to harassment based on sex.
A lower court dismissed the case and a panel of appeals court judges last year upheld that decision, saying the worker had no grounds for a federal civil rights suit. Reason: The harassment was based on his sexual orientation, not his gender.
But a new hearing before a larger appeals panel produced a different result: The court ruled that the worker had a case. A victim's sexual orientation is irrelevant in cases of sex harassment brought under Title VII, the court said. "It is enough that the harassers have engaged in severe or pervasive unwelcome physical conduct of a sexual nature," the judges said. (Rene v. MGM Grand Hotel Inc., No. 98-16924, 9th Cir., 2002)
This ruling comes out of the employee-friendly 9th Circuit that includes California. But it sends a loud message that other courts may be more open to viewing same-sex harassment on par with gender discrimination.
Advice: You don't have to revise your anti-harassment policy or change the way you train employees as long as you stress this fact: The gay versus straight issue doesn't matter. This means any harassment "because of" a person's sex is illegal, whether it's cross-gender, same gender, gay or straight.
With this decision, the court has opened a door for gays and lesbians to pursue rights from which, until recently, they were excluded simply because of their sexual orientation.
Finally, take note that in 12 states and more than 225 local government areas this is a moot point because these jurisdictions have laws that specifically forbid job discrimination based on a person's sexual orientation. If you're covered by one of these laws, include sexual orientation in your EEO policy. That way, if you're faced with a sexual orientation lawsuit, you can point to your policy as evidence of your commitment.