Medina Rene v. Mgm Grand Hotel, Inc.

Cir.2002). (9th 827-28 Sеgura, subterfuge. See means of sup- that in evidence court found district (noting U.S. claim Henderson’s excessive force port any in agents the evidence was no there the agree with “woefully sparse.” We was apart the in presence exploited way Henderson failed court district was ment). Thus, privacy the “invasion regarding of fact question material raise a Vernonia, significant.” v. force claim. Robinson her excessive Cf 660, 115 Co., Solano consid- we have the factors Weighing Cir.2002) summary judgment a (reversing expectation decreased above—’the ered the of the officers where ruling in favor served, interest government the privacy, a and handcuffed guns pointed officers the unobtrusiveness the relative approaching peacefully). suspect who was offi- police the conclude search—-we properly granted Summary judgment residence into the Henderson entry cers’ district the before the light of record and hence constitutional. was reasonable court. assump caution We CONCLUSION with entry into a residence police

tion that con pass in hand order will restraining entry a into the limited Henderson’s While infringed upon legitimate all circumstances. muster doubtless stitutional house police expecta- Henderson’s significant expectations, it privacy only outweigh government’s at Suzanne’s involved tions do not officers became maintaining peace limited to interests compelling and their actions were request, through order enforcement good retrieved while she Suzanne accompanying ex- orders. Henderson’s domestic violence entirely an would be This property. her failed fails because she force claim cessive a targeted if the officers had different case raise a evidence to to adduce sufficient law enforce of a normal part as suspect Accordingly, the question fact. material enlisted and then investigation ment is AFFIRMED. decision district court’s subterfuge a person protected help of without suspect’s home to search course, no view as express we Of

warrant. scenario. of that factual

to the outcome point emphasize only

We mention is not exception needs special RENE, Plaintiff-Appellant, Medina application. to wide conducive v. INC., HOTEL, MGM GRAND FORCE CLAIM II. EXCESSIVE Defendant-Appellee. summary judg party opposing A 98-16924. No. prof obligation has the affirmative could rea jury from which fer evidence of Appeals, States Court United non-moving party. sonably find Ninth Circuit. Inc., 477 Lobby, Liberty Anderson See En and Submitted Argued 251-52, 25, 2001. Sept. Banc record Where L.Ed.2d Sept. Filed rational a whole would lead taken as non-moving to find for the of fact trier for trial. issue remains genuine no

party, Plan, Disability and Decker v. Black

Nord NV, for Vegas, Las Segerblom,

Richard appellant. Morris, Youchah, Las Schreck Elayna J. NV, for the appellee. Vegas, SCHROEDER, Judge, Chief Before: TROTT, PREGERSON, HUG, NELSON, FERNANDEZ, T.G. FLETCHER, GRABER, THOMAS, W. BERZON, Judges. FISHER, Circuit A. by Judge Opinion WILLIAM FLETCHER; by Judge Concurrence PREGERSON; by Judge Concurrence by Judge GRABER; Concurrence FISHER; HUG. by Judge Dissent FLETCHER, Circuit A. WILLIAM Judge. question presents

This case alleges that who employee an of whether severe, pervasive, subjected to a sexual “physical unwelcome a viable asserts workplace nаture” under based claim of Act,-42 Rights the 1964 Civil Title VII if em seq., even §§ 2000e et U.S.C. for motivation alleges that also ployee orienta sexual his that discrimination employee’s an would hold We tion. pur for irrelevant is orientation sexual nor provides neither Title VII. It poses of sexual of action a cause precludes is, may harasser That the harassment. hostility based on be, motivated irrelevant, and nei similarly orientation a cause precludes nor ther provides enough It action. the harasser fingers through anus his cloth- engaged in have severe or un- pervasive ing. When asked what he believed was welcome physical conduct of a sexual na- the motivation behind this harassing be- ture. We therefore would hold that the havior, responded that the behavior plaintiff in this case has stated a cause of occurred gay. because he is under Title VII. action 20, 1996, On June charge Rene filed a discrimination with the Equal Nevada

I Rights Commission. He that he Rene, man, Medina an openly gay ap- “was discriminаted against my because of peals from the grant district court’s sex, male” and'indicated “I my believe that summary judgment in favor his employ- sex, male, was a factor in the adverse er MGM Grand Hotel in his Title VII treatment I 13, 1997, received.” April On alleging action sexual harassment his Rene a complaint filed in federal district male coworkers and supervisor. The rele- court, alleging that he had been unlawfully vant facts are in dispute. Rene sexually harassed in violation of Title VII1 hotel, worked for the located Vegas, in Las and attaching copy of his Equal Nevada Nevada, from December 1993 until his ter- Rights charge. Commission MGM Grand mination June 1996. He worked as a moved for summary judgment on the floor, butler on the 29th his where duties grounds that “claims of discrimination responding involved to the requests of the based on sexual orientation are cogni- wealthy, high-profile and guests famous zable Title under VII[.]” for whom that floor was All reserved. floor, the other butlers on the as well as The court agreed district that Rene had supervisor, their werе also male. failed to cognizable state a Title VII claim. provided that, Rene extensive evidence In granting summary judgment in favor of over the course of two-year period, his Grand, MGM it concluded that “Title VIPs supervisor and several of his fellow but- prohibition of ‘sex’ applies subjected lers him to a hostile work envi- only [to] discrimination on the basis of ronment on daily almost a basis. The har- gender and is not extended to include dis- assers’ conduct included whistling and based crimination on sexual preference.” blowing Rene, kisses at calling him timely Rene appealed.

“sweetheart” and “muñeca” (Spanish for “doll”), telling jokes giving crude and sex- II ually “joke” oriented gifts, and forcing to look at pictures of naked men We grant review a of summary judg- having sex. On “more than [Rene times ment de novo. “[Our] review is governed count,” said could possibly he] harass- the same standard used the trial ment involved physical offensive court under Federal Rule of Civil Proce- of a sexual 56(e).[We] nature. Rene gave deposition dure determine, must viewing testimony that he was caressed and the light evidence most favorable to hugged that his coworkers would the nonmoving party, whether there are body “touch like they [his] would to a any genuine issues of material fact and occasions, woman.” On said, numerous whether the district court applied correctly they grabbed him in the poked crotch and the relevant substantive law.” Delta Sav- alleged retaliatory Rene also discharge. ment on that appealed claim was not and is grant The district summary judg- court’s not before us. Relocation, Inc., 265 F.3d 1017, Windermere States, 265 F.3d v. United Bank ings (9th Cir.2001); v. Fielder UAL 903, 910 (internal Cir.2001) omit- citations (9th Cir.2000). 973, 985 Corp., ted). alleged physical that Rene has It clear Ill pervasive so severe conduct that Act, 42 Rights Civil objectively of the 1964 Title VII an abusive as to constitute that “[i]t seq., provides § et clear equally 2000e It is working U.S.C. environment. practice employment unlawful an a sexual nature.” be was “of shall the conduct any individual his elbow grab ... to discriminate did not tormentors Rene’s terms, cоmpensation, They eye. to his respect in his fingers with poke or their employment conditions, fingers privileges poked crotch and grabbed Court sex[.]” in his anus. ago, years clear, more than made routinely has assault Physical sexual Vinson, 477 U.S. v. Savings Bank Mentor un- harassment as sexual prohibited been L.Ed.2d 57, 64, 106 S.Ct. sampling A limited Title der VII. Ti- violates (1986), Henderson includes decisions reported sexually tle VII. 612, Foods, Inc., 616 F.3d 217 Simmons male and supervisor by his male harassed Cir.2000) (8th shoving (groping broom and environ- work the hostile under coworkers Tnemec crotch); Schmedding v. handle See harassment. theory of sexual ment Cir.1999) (8th 862, Inc., Co., F.3d 865 187 17, Inc., U.S. 510 Sys., Harris v. Forklift buttocks); Runyon, 167 Bailey v. (patting (1993) 367, 295 126 L.Ed.2d 22, 114 S.Ct. Cir.1999) (8th (grabbing 466, 467 F.3d the discrimina- very fact (noting “the Inc., Hut, 162 crotch); v. Lockard Pizza pervasive or severe was conduct so tory Cir.1998) (10th (putting 1062, 1067 F.3d abusive a work environment created breast); v. Cook Zimmerman mouth gender ... employees 1017, 1018 F.3d Dep’t, 96 County Sheriffs of work- broad rule Title VII’s offends ... Cir.1996) rub- (7th and breast (grabbing equality”). place Co., buttocks); Quick Donaldson v. bing Cir.1996) (8th (grab- 1372, 1374 F.3d 90 of sexual the kinds describing flicking and testicles and bing squeezing work сan create hostile Markets, Super Nat’l v. Varner groin); explicit environment, in Meritor the Court Cir.1996) (8th 1209, Inc., 1211 94 F.3d a sexual conduct of “physical ly included v. Pizza breasts); Wrightson (grabbing 65, 106 Meritor, at S.Ct. 477 nature.” Inc., 140 America, F.3d 99 Hut Guidelines, 29 C.F.R. EEOC (quoting 2399 Cir.1996) against (4th genitals (rubbing (1985)). this 1604.11(a) have applied We § Co., Paper Int’l buttocks); v. Wattman occasions, “ex on numerous holding Cir.1989) (5th (grabbing 468, 472 F.2d 875 exists environment that a hostile plain[ing] hose high pressure directing (1) and he or breasts show that employee can an when Co., crotch); v. Construction Hall Gus conduct physical ... subjected to was she Cir.1988) (8th Inc., F.2d (2) nature, conduct of a sexual breasts); grabbing and (rubbing thighs (3) unwelcome, that the and was F.2d Chicago, 799 East City Bohen as to pervasive or sufficiently severe Cir.1986) hands (7th (pressing 1180, 1182 employ the victim’s conditions of alter the Invs., 846 crotch); v. Wesco Jones envi working abusive create an and Cir.1986) (8th (touching 1154, 1155 872, F.2d Brady, 924 Ellison v. ronment.” buttocks). breasts, patting pinching Cir.1991). Little v. (9th See also grabbing, Such poking, rub- The premise of a sexual touching hostile harassment — bing mouthing or areas of the body linked work environment claim is that the condi- sexuality inescapably “because of tions of the work environment have been —is Belleville, ... City sex.” See Doe v. made hostile “because of ... sex.” See (7th Cir.1997), Ellison, 119 F.3d vacated 924 F.2d at 876. The physical remanded, 523 U.S. attacks to which Rene subjected, (1998) (“[W]e 140 L.Ed.2d 313 have targeted which body parts clearly linked to difficulty when imagining harassment of sexuality, were ... “because of sex.” be, measure, this kind would not in some Whatever else those may, attacks may ‘because of not, harassee’s sex—when have been “because of’ legal has no genitals grabbed, one’s are ... it would consequence. long as “[S]o the environ- seem impossible to us to delink the harass- ment itself is plaintiff hostile to the ment from sex, individual cause of why [his] the harassment was harassed.”). (sexual The most extreme form of of- perpetrated misogyny? interest? physical, fensive rape— personal vendetta? misguided humor? conduct— clearly violates boredom?) Title VII. See Little v. Doe, is beside point.” Relocation, Windermere 265 F.3d at 912 F.3d at 578. (“Rape unquеstionably among the most opinion today Our is guided by the prin severe forms of sexual harassment. ciples established the Supreme Court is, minimum, Being raped an act of Oncale v. Servs., Inc., Sundowner Offshore sex.”); discrimination based on Brock v. 75, 118 998, 140 L.Ed.2d 201 States, United (1998). As Court, recounted Cir.1995) (“Just every murder is a also ‍‌​​‌‌‌​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌​‌​‌​‌​​‌‌‌​‌​​‌​‌​‌​‍plaintiff Title VII in Oncale had been “for

battery, every rape committed in the em- cibly subjected sex-related, humiliating ployment setting is also discrimination actions” and had been “physically assault sex.”). based on the employee’s ... ed in a sexual manner” other males place Oncale, of employment. In granting MGM Grand’s motion for U.S. at 118 S.Ct. 998. We know from summary judgment, the district court did the circuit court’s physical deny that the sexual assaults alleged included, assault among things, other “the by Rene were so objectively offensive that use of force [one push co-worker] to they created a working hostile environ- soap bar of into Oncale’s anus while [an Rather, ment. it appears to have held that other co-worker] restrained Oncale as he Rene’s otherwise viable cause of action was showering[.]” Oncale v. Sundowner was defeated because he believed he was Servs., Inc., Offshore targeted because gay. he is This is not (5th Cir.1996). occurred, This behavior the law. We have surveyed many noted, the Court in an all-male workplace. cases finding violation of Title VII based Oncale plaintiff was male who worked on on the touching offensive of the genitalia, an all-male off-shore oil drilling rig “as a buttocks, or breasts of women. In none of roustabout on an eight-man crew.” See those cases has a court denied relief be- Oncale, (em 523 U.S. at 118 S.Ct. 998 was, been, cause the victim might have added). phasis employer, Oncale’s Sun- a lesbian. The sexual orientation of the downer, never employed women on any of victim simply irrelevant. If sexual its drilling rigs. See App. Joint at 76. orientation is irrelevant for a female vic- tim, we see no why reason it is not also facts, Based on these irrelevant for a male victim. Cоurt reversed the judgment of the Court is, Appeals Circuit, That a defendant's conduct must not for the Fifth which had merely sex"; grant summary judgment be "because of it must be affirmed a defendant-employer "`discriminat[ionJ because of favor of the on the Oncale, grounds sex.'" 523 U.S. at that "same-sex harassment is not (emphasis original). cognizable Oncale, The Court in under Title VII." "discrimina[tion] F.3d at 118. We take two lessons from Oncale held that ... be- entirely among the Court's decision in Oncale. cause of ... sex" can occur men, subjected where some men are First, Title VII forbids severe or touching offensive sexual and some men pervasive same-sex offensive sexual touch are not. There were no women on On- ing. plain The Court made clear that a drilling rig; indeed, cale's there were no tiff's action for sexual harassment under any employer's rigs. women on of his oil by showing Title VII cannot be defeated Discrimination is the use of some criterion perpetrator that the and the victim of an as a basis for a differencе in treatment. alleged sexual assault are of the same rights laws, In the context of our civil gender. wrote, The Court including VII, Title discrimination is the justification statutory We see no in the use of a forbidden criterion as a basis for a language precedents or our for a cate- disadvantageous difference in treatment. gorical excluding rule same-sex harass- "Sex" is the forbidden criterion under Title coverage ment claims from the of Title VII, any and discrimination is disadvanta- observed,

VII. As some courts have geous difference in treatment "because of male-on-male sexual harassment holding sex." The Oncale Court's workplace assuredly princi- not the touching offensive sexual in a same-sex pal Congress evil was concerned with workforce is actionable discrimination un- statutory when it enacted Title VII. But necessarily der Title VII means that dis- prohibitions go beyond princi- often place crimination can take between mem- pal reasonably comparable evil to cоver sex, merely bers of the same between evils, ultimately provisions and it is opposite Thus, members of the sex. On- principal of our laws rather than the cale did not need to show that he was legislators by concerns of our which we oppo- treated worse than members of the governed. are enough site sex. It was to show that he Oncale, 79, 998; comparison 523 U.S. at 118 S.Ct. see suffered discrimination in to ("Because other men. also id. at 118 S.Ct. 998 many motivation, facets of human Viewing facts, must, as we presume would be unwise to as a matter of light nonmoving most favorable to the beings law that human of one definable party, presented we are with the tale of a group will not discriminate other repeatedly grabbed man who was in the group." (citation members of their and in poked anus, crotch and and who was quotation omitted)). Thus, ternal Oncale's singled out from his other male co-workers cause of action could not be defeated based for this treatment. It is clear that on the fact that he was tormented other offensive conduct was sexual. It is also men. clear that the offensive conduct was dis Second, criminatory. is, alleged offensive sexual touch That Rene has ing differently-and is actionable discrimination even in a that he was treated disad same-sex workforce. The Court in Oncale vantageously-based pre on sex. This is cisely made clear that "discrimination" is a nec what Title VII forbids: "discrimi- essary predicate every nat[ion] ... because of ... sex." Title VII claim. sum, we what have in this a case is out view, in my this is a case of fairly straightforward sexual harassment gender actionable stereotyping harass- prohibits claim. Title VII “phys offensive ment. ical conduct aof sexual nature” when More than a ago, decade the Supreme sufficiently pervasive. severe or gender Court held that stereotyping is ac Meritor, U.S. 106 S.Ct. 2399. It tionable under Title VII. See Price Water prohibits such conduct regard without v. Hopkins, house 250-51, 490 U.S.

whether perpetrator and the victim are (1989). 104 L.Ed.2d 268 of the same or different genders. See recently, More Court held Oncаle, 79, 118 S.Ct. 998. And that “same-sex sexual harassment is ac it prohibits such conduct without regard tionable under Title VII.” Oncale v. Sun the sexual orientation —real perceived— Services, Inc., downer victim. Offshore 75, 82, 140 L.Ed.2d 201 There will be close cases on the question only And year, last we held that of what constitutes physical conduct of a same-sex stereotyping of the sort nature, for there are some physical i.e., suffered gender stereotyp Rene — assaults that are physi- intended inflict ing of a male gay employee by his male co injury, cal but are not intended to have workers—“constituted actionable (and harass are interpreted as having) sexual ment under ... Title VII.” Nichols v. Az meaning. is, That there will be some teca Restaurant Inc., Enterprises, cases physical assault, which a even (9th Cir.2001). though directed at a sexually identifiable part of body, give does not rise to a Rene testified in deposition that his viable Title VII claim. But this is such co-workers teased him about way a case. plaintiff Oncale, Like the Rene walked and at him whistled “[l]ike a man has physical assault of a sexual does to woman.” Rene also testified that nature that is sufficient to survive a de- his co-workers butt, would my “caress ca- fense motion summary judgment. my ress shoulders” and blow kisses at him This opinion joined by Trott, Judges way “the ... a man woman,” would treat Thomas, Graber, and Fisher. Judge Pre- hugged him from behind “like a man hugs gerson, in a separate joined woman,” and would “touch my body like Judges Berzon, Trott and reaches the woman, would they to a my touch face.” same result but under a different ratio- Rene further testified that his co-workers nale. together, Taken these two opinions him called “sweetheart” and “muñeca” joined are by a majority of the en banc (“doll”), “a word that Spanish men will say panel. Accordingly, the district court’s Spanish to women.” This conduct oc- grant of summary judgment to MGM “many curred times.” repeated The testi- Grand is REVERSED, and the case is mony that his Rene, co-workers treated in REMANDED for further proceedings. a variety of ways, a “like woman” consti- ample tutеs gender evidence of stereotyp- PREGERSON, Judge, Circuit with ing.1 whom BERZON, TROTT and Circuit Judges, join, concurring. The conduct suffered Rene is indis-

I concur in the Judge result of tinguishable Fletch- from the conduct found ac- er’s opinion. I write separately point to in tionable Nichols. In that Thus, contrary dissent, to a in claim the there is much gender more evidence of ster- was re- employee cases, gay male a both re- supervisor a and co-workers Male in female his male-co-workers plain- to gay male ferred to [the referred peatedly and whore” “she,” “her,” “she” and “female and English Spanish in tiff] terms — Nichols; [him] “muñeca” mocked and eo-workers “sweetheart” Male in “her.” serving his “re- case—to carrying (“doll”) and walking present for in in him woman,” taunted and to a conform “like did not that he tray mind!] [him] as, other among Nichols, English and Spanish stereotypes.” gender-based “... female a “faggot” and a things, reasons For same at 874. whore.” that “[the] in Nichols that we concluded in Nichols concluded We the basis at 870. discrimination on F.3d that bars rulе bars discrimination rule that “[the] in Water- set Price stereotypes” sex Price set in stereotypes” the basis preclude applie[d] “squarely house preclude applies “squarely Nichols, Waterhouse there, at issue harassment” Nichols, 256 F.3d here.” the harassment 874-75, this rule I conclude at we held generally, More at 874-75. the iden- preclude applies squarely also closely related abuse “this verbal Accord- issue here.3 at tical harassment sex,” and because “occurred gender,” gender of actionable is a case ingly, harass- actionable “constituted therefore stereotyping harassment. Id. Title VII.” ... under ment and Nichols between similarities concurring. GRABER, Judge, Circuit both striking. are case the present Judge W. Fletcher’s in I concur “teased” employee cases, male gay a materially indis- are facts here co-workers by his male “mocked” in Oncale facts from the tinguishable inAnd a “like woman.”2 he walked reason, were, all for whatever 29th floor only "one case than present eotyping All- male, connotes. "butler” term as the hundred over one deposition of in Rene's line for the sites common workplaces are male note 4. at 1077 Diss. pages.” and the harassment gender norms policing See, e.g., transgress norms. such of men who that, male unlike the significant not It is Visio, Stockdale, Lee- and Michelle Margaret Nichols, testify that not did Rene employee Batra, Men: Harassment The Sexual na "walking ... for teased him his co-workers ” Theory Harassment a Broader Evidence woman,’ only that but id. 'like Discrimination, Psychol. Pub. and Sex way [he] about "teas[ed][him] co-workers (1999) (stating Pol’y & L. like [him] whistle[d] and walk[ed] exclusively environ- male "Predominantly or reason for no would be There woman.” and less sexualized to be more tend ments “like at Rene to whistle co-workers Rene’s woman,” environ- gender neutral than professional to be they perceived him unless ments,” Depart- data from finding that a wom- too much like enough like a man survey of Defense that is stereotyping, and an. That sexually ha- samе-sex ‍‌​​‌‌‌​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌​‌​‌​‌​​‌‌‌​‌​​‌​‌​‌​‍trend that "support the was dis- he said when Rene meant what more male-dominated worked openly rassed men against because criminated men”); Vicki did other workplaces than Likewise, contrary to a claim gay. Schultz, Harass- Sexual Reconceptualizing appar- dissent, significant that Rene is not (1998) ment, n. 387 L.J. 107 Yale to be "masculine.” himself ently perceived only may view not workers ("[M]any male what At issue at 1077. Diss. com- be, male-dominated also the jobs, what but but rather their himself perceived be, they identification how masculine position perceived him to co-workers they are work, which property to forms of perception. upon that acted 77, Oncale, 118 S.Ct. entitled.”); U.S. male harassed (oil which rig crew in "butlers” noting that worth also It is male). all plaintiff worked guests on Grand Hotel’s that served Services, Inc., Sundowner 523 based for purposes of summary judg- Offshore 75, 998, ment”). U.S. 118 S.Ct. 140 L.Ed.2d 201 The alleged abuse Rene suffered (1998). If summary judgment the em- was also sufficiently hostile and abusive to ployer’s favor was inappropriate in that distinguish it from “simple teasing and case, it equally so in this one. roughhousing among members of same Oncale, sex.” 82, 523 U.S. at 118 S.Ct.

I write separately to note that I agree with Judge Hug’s dissent two issues

that the majority opinion does not reach: I also agree with Judge Pregerson that (1) Title VII protect does not employees many examples in which Rene was from discrimination because of sexual or- allegedly physically touched and verbally (2) ientation and Rene did not assert a mocked his harassers as being “like a theory of “sexual stereotyping.” woman” constituted ample evidence from which a jury could conclude that

FISHER, Judge, Circuit Concurring. harassment Rene endured was based on gender stereotyping. See Nichols v. Azte- I concur in Judge Fletcher’s opinion. Enter., Inc., ca Rest. 864, 256 F.3d 874-75 Summary judgment improperly granted (9th Cir.2001). where, as in this the “inference of discrimination” because of sex is “easy to HUG, Circuit Judge, with whom draw.” v. Oncale Sundowner Offshore SCHROEDER, Chief Judge, Servs., Inc., 75, 80, FERNANDEZ, and NELSON, T.G. 140 L.Ed.2d 201 repeated Judges, join, Circuit dissenting. physical attacks targeted at body parts clearly linked gender to Rene’s constituted I respectfully dissent from Judge overwhelming evidence from which jury Fletcher’s plurality opinion and Judge Pre- could infer that the based, attacks were gerson’s opinion concurring result, in part, least on Rene’s sex. See 42 U.S.C. but expressing different rationale for the 2000e-2; § also, see e.g., Steiner Show result. The basis for Judge Fletcher’s Co., boat Operating 25 F.3d is that harassment of a person in (9th Cir.1994) (holding that when abuse the workplace in the form of severe unwel- directed at women “center[s] on the fact come physical conduct of nature is they females,” [are] jury may infer sufficient to establish a cause of action discrimination based on gender); Doe v. under Title VII of Act, Rights Civil Belleville, City 119 F.3d regardless of whether that harassment Cir.1997) (“Frankly, we find it hard to constitutes race, discrimination because of think of a situation in which color, in someone religion, gender, or national origin. tentionally grabs another’s testicles for I disagree because this completely elimi- reasons entirely unrelated to that person’s nates an essential statute, element of that gender.”), vacated and remanded by 523 that the harassment be because discrim- 140 L.Ed.2d 313 ination against one of the specified five (1998); Quick Co., v. Donaldson categories of persons named the statute. (8th Cir.1996) (holding that Judge Pregerson’s opinion is upon based “bagging” of testicles of men gender other men stereotyping harassment, which in predominantly male workforce was never asserted Rene in the district “[e]vidence that members of one sex were court and was not supported by evidence the primary targets” of harassment “suffi presented to the district court. my cient to show that the conduct was opinion this is manufacturing a claim for

1071 II. never advanced that was appeal Rene on in the by evidence supported him or appli- following proper is a I believe court. district by the interpreted statute as of the cation Supreme Court. I. an un- that it is provides 1. Title VII is Judge Fletcher’s оf to dis- The basis practice employment lawful following statement in the expressed well because person a criminate against paragraph: race, color, the first religion, from person’s of that sex, origin. of national or question presents case This alleges who employee an whether a job can be on the Harassment 2. severe, pervasive, subjected to Meritor of discrimination. form aof conduct “physical unwelcome Vinson, 477 U.S. 57, and v. Sav. Bank asserts workplace nature” 2399, 4 64, L.Ed.2d 91. 9 on based of discrimination a viable claim (1986). Civil VII of Title under against Thus, protects Title VII 3. enough It is Act.... Rights harassment, of type discrimina- or in severe engaged have harassers of job if it is because tion on of physical unwelcome pervasive sex, national race, color, or religion, a sexual nature. rea- for other Harassment origin. perti- of the a mischaracterization person This is sons, example, because for Supreme Title VII of bald, section be- fat, disfigured, nent short, thаt section. interpretation group, Court’s social unpopular an longs to par- political particular to a belongs pro- Title VII section pertinent The out- other activities ty, engages or vides: including sexual work-place, side the employment unlawful an shall be It disfa- activities, harasser employer— an for practice Title under vors, is not actionable dis- hire (1) or or to fail refuse VII. individual, or otherwise any charge job by physical on the 4. Harassment with any individual against discriminate per- because humiliation or assault terms, con- compensation, respect to Black, a Asian, Jehovah’s son employment, ditions, privileges Witness, Polish, or because color, race, individual’s cause of such under is actionable person’s sex, origin[.] or national religion, of dis- a type it is Title VII 2000e-2(a)(l) add (emphasis § 42 U.S.C. par- against and is crimination made ed). have Court decisions people protected classes ticular section “sex” the term it clear that Title VII. “sex” terms to “gender.” refers against protect does Title VII interchangeably been used have “gender” mat- general as a assaults physical Thus, it is discrimina mean “gender.” to be an assault In order ter. prohibited. that is “gender” tion based must be Title under VII actionable Inc., Sys., v. Harris See Forklift one type 126 L.Ed.2d classes. protected five Hopkins, Waterhouse (1993); Price or otherwise is assaulted If a person L.Ed.2d man- in a sexual job on the harassed ner, it is forma of discrimination 140 L.Ed.2d 201 against person. However, that

assault or harassment is actionable III. under Title VII if only it is because race, color, that person’s religion, It is of now clear that sexual harass gender, or national origin. ment can be a form of discrimination based Meritor, 7. Sexual on sex. job harassment on can be U.S. at a form discrimination that is ac- Court stated: “With question, tionable out under Title VII if it when a supervisor is be- sexually person’s harasses a gender. For subordinate because the sub sex, example, a supervisor “when supervisor sexual- ordinate’s that ‘discrimi ly harasses a nate[s]’ on the basis subordinate because of sеx.” Id. (emphasis added). sex, the subordinate’s that supervi- case the evidence that a sor male supervisor on ‘discriminate^]’ made basis of unwelcome sexual Meritor, sex.” advances to a woman subordinate was suf added). (emphasis S.Ct. 2399 ficient to constitute discrimination based on sex. 8. Discrimination because of (gen-

der) can extend to sexual stereotyp- Rene alleged that he was discriminated ing on job. For example, if a against because he gay. Alleging a woman does not act job on the hostile work theory environment of sexual way her employers perceived she harassment, alleged Rene that he was sex woman, should act aas as was the ually harassed his male co-workers and situation in Waterhouse, Price or if a a supervisor. To succeed on theory, man does act on job like it is Rene prove must first that he was forced perceived a man should, as was the a subjectively endure and objectively situation in Nichols v. Azteca Res- abusive working environment. See On taurant Enterprises, Inc., 256 F.3d cale, 81, 118 523 U.S. at 998; Harris, S.Ct. (9th Cir.2001), this can be sexual 21-22, 114 510 U.S. at 367; Brooks v. stereotyping and actionable under City Mateo, San Title VII. Cir.2000). case, In this parties do not dispute Discrimination existence form of of a harass- hostile work environment, ment or assault on the job there is no doubt that the of a activity man’s outside the work- was so ob jectively such place, activities, as his offensive created a hostile work not a environment. basis for The dispute discrimination based wheth er on gender stereotyping against how discriminated he is because of gender. expected to work job. on the A might person conform to all the ster- Rene relies on Oncale to make his eotypes of masculinity job on the yet contending the Supreme impli- Court have homosexual orientation in his edly held that discrimination based on sex- own private life. ual orientation is actionable under Title 10. Discrimination based can VII. This is a misreading of Oncale. That

extend to case did involve harassment of the male рerson of one sex person of plaintiff by his co-workers, male some of the same ‍‌​​‌‌‌​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌​‌​‌​‌​​‌‌‌​‌​​‌​‌​‌​‍sex. Oncale v. Sundown- which was similar to the harassment Servs., Inc., er this case. The Fifth Offshore Circuit Ap- Court of

1073 VII. under Title actionable case that was in favor judgment summary affirmed peals rather, rejected the Court, simply The “Mr. that ground on the employer of the holding that same-sex Fifth Circuit’s action of male, has no Oncale, a un- be actionable never could male harassment harassment VII Title under Oncale, at See VII. Oncale, at der Title co-workers.” (“Because that we conclude the Su before sole issue The same-sex consisting of whether sex discrimination was certiorari on Court preme under Ti- actionable is actionable is harassment sexual harassment sexual same-sex of it the Court that of VII, judgment held the The Court tle' Title VII. under is reversed ex Fifth Circuit Court However, Supreme for the Appeals the was. (criticizing 79, 118 S.Ct. 998 ....”); all prohibit not id. at VII does “Title plained, “same-sex the work view that in Fifth Circuit’s harassment the physical or verbal cogni- are ‘discrimi never only at claims directed harassment sexual place; ” VII”). Id. at sex.’ of Title ... because zable under natfion] held been has it Never 80, 118 S.Ct. 998. sexual that same-sex clarifying After harassment, harass even workplace “that Title under be actionable could harassment women, is auto and men between ment Fifth to the Cir- remanded VII, the Court of because discrimination matically the question whether the to address cuit sexu have used words the because merely is, sex,” that “because was harassment Rather, Id. connotations.” or al content because was harassment the whether always VII, “must plaintiff the Title under had been issue That gender. Oncale’s was not at issue prove or cir- district court by the addressed conno sexual with offensive tinged merely holdings of those court because cuit ‘discrimi actually tations, constituted but could harassment that same-sex courts ” Id. ... sex.’ ... because naftion] The Title VII. under be actionable never 81, 118 S.Ct. 998. same-sex of how gave illustrations Court cоncurring of sex” and Thomas added “because be Justice could harassment emphasize to Oncale Title specifically under VII. opinion actionable thus of sex.” to “because had be and hostile quo quid pro discrimination alleged both had states: opinion in concurring harassment sexual environment work stresses v. Sundowner the Court Oncale court. because I concur the district Inc., Servs., harassment every sexual in Offshore ultimately remand, courts the lower plead Cir.1996).1 must On plaintiff requirement statutory of whether question Title VTI’s address prove were “because of his was because there be harassment this sexual implication no was ... sex.” There gender. alleged opinion Court’s Thus, the Su- 82, 118 S.Ct. 998. Id. at of sex.” was “because harassment sexual hold that did in Oncale Court preme not been determination, which had in That plaintiff alleged the harassment statutory require- light of harassment Judge Fletcher's implication in is an 1. There Quid gender. his be because that it touching in- sexual opinion that generally understood quo pro awas the remand case Oncale’s volved insisting seeking supervisor be a In the dis- was sufficient. holding that this employee in order from an favors sexual pro quo alleged quid both Oncale court trict advance- job or to obtain or her maintain harass- environment hostile work On- involved been may have This Oncale, the re- ment. thus ment, cale, alleged by Rene. never but types of both consider was to mand considered, previously was to be addressed because he was male. Rene contended courts lower on remand. that he was treated differently because he was homosexual. Judge Fletcher’s in effect inter- prets Oncale mean that if the defen- Title VII is not an anti-harassment stat- dant’s “sexual in nature” the ute; it is an anti-discrimination statute statutory requirements of Title VII are against persons in five specific classifica- met. opinion The then reasons that race, color, tions: sex, religion, or national cause the touching in this case was sexual origin. Harassment can be type of dis- in nature and was discriminatory, Rene crimination against persons in one of those has stated a claim under Title VII. This specific five However, classifications. in misinterprets Oncale. The Oncale Court order for harassment to be actionable it did say that see no justification “[w]e in has to type be a of discrimination “because the statutory language or our precedents race, color, of’ religion, sex, or national for categorical rule excluding same-sex origin. There are many types of harass- harassment claims from the coverage of ment in workplace the that very are offen- Title VII.” 118 S.Ct. 998. sive but are not actionable under the fed- However, qualified the Court that by stat- eral Title VII law. ing “Title prohibits VII ‘discriminat[ion] While the Court held in Oncale that of ... because in sex’ the ‘terms’ or same-sex harassment can be un- actionable ‘conditions’ of employment. Our holding VII, der Title it did not hold that same-sex that this includes sexual harassment must harassment because of sexual orientation еxtend to sexual of any harassment kind is actionable under Title VII. The Court that meets the statutory requirements.” gave three examples ways plaintiff can Oncale, 79-80, 523 U.S. at 118 S.Ct. 998 prove that members of one sex can dis- added). (emphasis Thus, the Court against criminate members of the same stressed that the harassment type of dis- gender. because of 80-81, Id. at crimination must meet the statutory re- S.Ct. 998. These examples are not the quirement of “because of sex.” Justice exclusive ways, but rather are illustrative Thomas’ emphasized concurrence that of same-sex harassment because of gender point. Oncale, 523 U.S. at 118 S.Ct. that could be actionable under Title VII. 998. Differential treatment of an individu- al based only on conduct First, that in plaintiff “sexual could show that the nature” does not meet the statutory re- harasser was by motivated desire; sexual quirement.2 The alleged route, harassment in this stated, Court requires that this case was not on account of plain- there be “credible evidence that the haras- sex, i.e., tiffs рlaintiff this was not treated ser was homosexual.” Id. at differently from all the other male butlers 998. Rene presented has no evidence that 2. One of the cases upon relied Judge in argument the same being by made Judge Belleville, Fletcher's City is Doe v. opinion. Fletcher's Had Supreme Court (7th Cir.1997). 119 F.3d 563 noteworthy It is agreed in Doe with proposition this it would Court, that the in describing the seem that it would have summarily affirmed. given subject treatments Instead, various cir- vacated and remanded the cuits, characterized that case as follows: 140 L.Ed.2d suggest "Still others that work-place harass- This strong is a indication that ment that is sexual in always content is ac- workplace harassment, simply which is "sex- tionable, regardless sex, content,” harasser’s sex- ual actionable; always orientation, ual Oncale, or motivations.” "because sex” statutory requirement must U.S. at 118 S.Ct. 998. This is essentially be met before the harassment is actionable. dis- protects VII homosexual, fact that Title nor were Ms harassers any of race, color, the basis of оnly on by crimination motivated way any they were sex, origin. U.S.C. or national religion, contrary, evidence theOn desire. sexual 2000e-2(a)(l). based § Discrimination they suggests not presented characteristics, matter no a victim’s other they rather sexually, but him desired dis- distasteful that how unfortunate of his humiliate him sought be, not fall simply does may crimination orientation. sexual of Title VII. Court purview within the Court identified route The second made that specifically in Price Waterhouse same-sex proving mem- interpretive from an quoting point demonstrate plaintiff requires Congressional entered in orandum sex-specific in such “harassed in co-managers the Senate by the Record as to [man] terms another derogatory Title VII. that became of the bill moti- [was] the harasser it that make clear of the memoran- portion quoted Court presence to the hostility by general vated dum that stated: Rene Id. workplace.” in of [men] distinction, to make is To discriminate form of of this no evidence presented or in treatment a difference to make imag- fact, to difficult In is harassment. or differ- favor, distinctions and those have; co- of his all could ine how he which are or favor in treatment ences male, and were 29th floor on workers those 704 are by section prohibited to con- indeed strange be thus it would for- any five of the which are based on was of Rene harassment that clude sex, race, color, religion, criteria: bidden to the hostility “general aby motivated criterion Any other origin. national Id. workplace.” in [men] presence is employment qualification or for plaintiff that a Third, the Court stated by this title. affected evidence comparative direct may “offer (emphasis 1775 treated harasser how the about added). in a mixed-sex both sexes members of more that recognized fact court This 80-81, Id. at workplace.” v. Pa in ago DeSantis twenty years than route of this avail himself cannot Co., F.2d 608 Telegraph Telephone & cific 29th floor of on the he worked because (9th Cir.1979), we held when Hotel, only men wеre where MGM Grand sexual the basis of that discrimination employed. employer an subject does not orientation the harass- these illustrations In each of societal While VII. liability under Title aat is directed discrimination type ment un homosexuality have toward attitudes person’s gender. of that person because was since DeSantis changes dergone some itself, it case Oncale the facts Given amended decided, not been Title VII ‍‌​​‌‌‌​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌​‌​‌​‌​​‌‌‌​‌​​‌​‌​‌​‍has did Court significant sexual based on discrimination prohibit aways plaintiff one of the not indicate re orientation; aspect DeSantis prove can same-sex followed has been law and good mains orientation. because sexual See, v. New Higgins e.g., circuits. other in his clearly stated he case In Rene’s Inc., Shoe, 194 F.3d Athletic Balance for the harass- the reason deposition Cir.1999); Pizza (1st Wrightson 259 gay. No other he was that (4th Am., Inc., 143 Hut of district court. to the offered reason was & Cir.1996); v. AG. Edwards Williamson Cir.1989) Inc., Sons, 876 F.2d the motivation determining In curiam). (per mindful of harassment, be courts must recently More the Third in Bibby Circuit ais matter for Congress to enact. Over Co., Bottling v. Phila. Coca-Cola years VII, since the passage of Title - (3d Cir.2001), denied, cert. U.S. numerous bills have been introduced to -, L.Ed.2d 1018 sexual include protected orientation as a (2002),held that harassment based on sex classification.3 None has passed. ual orientation is not actionable under Ti

tle allegations VII. The of harassment IV. one, as in this solely were based on harassment because of orienta Waterhouse, Price the Supreme tion. The stated: court Court held that discrimination based on “[wjhatever sex stereotyping clear was a type

[I]t is evidentiary follow, route the discrimination that is chooses actionable plaintiff under Ti- tle always woman, she must VII. The Court prove that held that a the con- who duct at issue denied merely tinged partnership was hot in an with accounting connotations, firm part offensive sexual actual- but she did not conform ly constituted some partners ‘discrimina[tion ] what thought was ” 81[, ... sex.’ Oncale at appropriate way act, should woman Bibby simply 998]. failed in had an actionable claim under Title VII. indeed, respect; he did not argue even The Court noted: that he being was harassed because he There were clear signs ... that some of was a man and nothing that offered the partners reacted negatively to Hop- would support such a conclusion. personality kins’ because she was a There was no allegation that his woman. partner One described her as harassers were motivated de- “macho”; another suggested that she sire, they possessed or that any hostility “overcompensated woman”; for being a to the presence of men in the workplace a third advised her to take “a in course at Bibby’s or particular job. Moreover, charm school.” partners Several criti- he did not claim that he was harassed her cized use of profanity; in response, because he comply to with societal failed one partner suggested that рart- those stereotypes of how ought men appear to objected ners to her swearing was, only “be- behave.... His claim pure and lady cause it’s a using foul simple, language.” he was discriminated [Another against advised her because of his sexual she] orientation. should “walk femininely, No more reasonable talk could more reach finder offact femininely, dress conclusion that more femininely, wear discrimi- make-up, nated have her styled, because he hair a man. and wear was jewelry.” (some added). Id. at 264 emphasis If sexual orientation is to be separate Waterhouse, Price 235, category protection VII, (internal under Title this S.Ct. 1775 citations to record Among S.19, introduced and those to failed be Cong. 107th. pur- The stated passed Employment are the Non-Discrimina- poses of provide this last act were to a com- tion Act of H.R. Cong. 103d prehensive prohibition federal employment (1994); Employment Non Discrimination discrimination on the basis of sexual orienta- (1995); Act of Cong. H.R. 104th provide tion meaningful and to and effective Employment Act Nondiscrimination employment remedies for discrimination on 1996, S.2056, (1996); Cong. 104th and the the basis of sexual orientation. Employment Nondiscrimination ofAct no contention there was In Rene’s case dis- that the omitted). noted The Court the harass- district court that reac- before the “that the had concluded judge trict was because experienced Rene were ment partners some at least tions of job, any or for effeminately on the manager.” acted a woman her as reactions Thus, his sexual orientation. in Price than reason other Id. legal argument pre- evi- line of the Waterhouse, The first was substantial there opposition in to the district court plaintiff sented the reason part dence erystal- summary judgment her the motion for was that partnership denied stating: to those point not conform izes this job did on the actions Yet manager. of a woman expected raised the motion question tolerated, or have been would aсtions same alleged by Rene the conduct whether manager. in a male encouraged, perhaps though even by Title VII prohibited v. Azteca in Nichols Recently, we held because of his at Rene was directed Inc., 256 Enterprises, Restaurant sexual orientation. male of a Cir.2001), harassment stereotyping of sexual Rene no claim made supervisor male workers

waiter evidentiary virtually no ba- there because of amounted supported could have upon sis which and thus was stereotyping fact, at had it been made. such a claim plain- In that case gender. referring deposition point one the harass- evidence presented tiff him, he who had harassed another worker feminine he acted too was because not masculine skinny. He is “He’s stated: walking and He was taunted job. I am.”4 like and tray like a woman serving carrying his that his repeatedly stated Rene was himself He mannerisms. having feminine him because of his harassed job co-workers not act on he did because harassed fewer than nine no orientation. On act sexual he should perceived co-workers his as af- deposition, during occasions man, of his sexual just because aas him harassed his co-workers firmed that This at 874-75. orientation. At least some gay. only because de- stereotyping to the sex corresponds mentioning: bear these statements in Price Waterhouse. scribed A. Correct. Pregerson’s opinion contends that Judge against Rene was form Q. you only whistling you think stereotyping. The evidence at he Was support gay? this contention you were you was discovered because make fun deposi- in Rene's one line entire record is way he looked course. The A. Yes. Of question refers pages. The of over 100 tion know, me, eye. Come winked his you concerning harass- made a note that Rene on. Elisio, one experienced from he had all, "Right. aLike response, Rene’s First of butlers, employ- end of Rene's toward woman,” obviously a re- is to a man does questions and answers ment. relevant way whistling, cоnfirming the sponse deposition are: Furthermore, questions and later walks. Q. teasing you about he's in this note And whistling was be- that the confirm answers you whistles at way you and he walk way he of the gay, not because cause he woman; right? like a is never con- significant that Rene walked. It to a woman. Right. man does Like a A. the basis for court that the district tended to Q. third you report on the And that's what stereotyping be- was sexual the discrimination well, as that Elisio page Exhibit 39 any other way Rene walked cause of wom- does to whistling you as a man workplace. at the he exhibited characteristic an? Q. you Do think you he did it to here to construe a statute as glossed by you Carlos because gay? were Court, the Supreme not to make a moral judgment we regard it as settled A. Yes. —and that,

law as drafted and authoritatively construed, Title VII proscribe does not Q. just you It was because were gay? simply because of sexual or- A. Right. n ientation. Higgins, 194 F.3d at 259. Q. again And that you directed at Rene’s brought lawsuit was solely on the and Carlos— basis that he was harassed in the work- A. Right. place because orientation, of his sexual Q. you gay? —because were which is not actionable under Title VII of Right. A. Rights Act; the Civil therefore the sum-

mary judgment was properly I entered. Q. They teasing you were you would affirm the district court. gay? and Carlos are

A. Correct.

Q. any Did guys other ever get

teased about the relationships they were you

in that recall? In re SMITH, Darrel D. Debtor. A. No. Smith, Darrel Appellant, D. Q. they And did this specifically be- v. you gay? were Hale, Ltd., Edwards Appellee. & A. joke. Yes. To them it awas Moreover, earlier, I explained Rene did Smith, Darrel Appellant, D. nothing show the district court that the harassment was because of gender. Lee, Ltd., Appellee. John Peter Instead, he quite plainly stated in his writ- ten presentation to the court Smith, Darrel Appellant, D. question presented was whether the con- duct he alleged prohibited “is by Title VII though

even it was directed at [him] Grimmett, Tom Lee, Ltd., John Peter ‍‌​​‌‌‌​‌‌​‌​‌‌‌​‌​‌‌​‌​​​‌‌​‌​‌​‌​​‌‌‌​‌​​‌​‌​‌​‍his sexual onentation.” (Empha- Nancy Allf, L. Hale, Edwards & added.) sis Ltd., Appellees. 00-17260, Nos. 00-17274 and 01-16531.

V. United States Court of Appeals, degrading and humiliating treat- Ninth Circuit. ment Rene appalling describes is deeply disturbing. I agree with the elo- Argued and Submitted March quent words of the First Circuit: Sept. Filed We hold no brief for harassment be- orientation;

cause of sexual it is a nox- practice,

ious deserving of censure and

opprobrium. But we are called upon

Case Details

Case Name: Medina Rene v. Mgm Grand Hotel, Inc.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 24, 2002

Citation: 305 F.3d 1061

Docket Number: 98-16924

Court Abbreviation: 9th Cir.