A male employee, one Rudolpho Lamas, complained about a female co-worker sexually harassing him for months.  The employee complained that his coworker repeatedly pressured him to have sex with her, Lamas’s boss offered a suggestion:  Try walking around the office singing, “I’m too sexy for my shirt.”  Coworkers all thought the situation was very funny:  why would a widower turn down the direct sexual advances of an attractive coworker?

When Does Flirting Cross the Line in the Workplace?

Lamas’s lawyers argued that this kind of “flirting” at work crosses the line and had become sexual harassment, as defined under Title VII of the Civil Rights Act.  The court was asked to decide whether Title VII imposes different standards on men and women in sexual harassment cases  At its core the question was this: do gender stereotypes have any place under Title VII?

The Ninth Circuit Court of Appeals in San Francisco answered Rudolpho’s attorneys’ questions in E.E.O.C. v. Prospect Airport Services. The decision is interesting, not so much for its ultimate finding—that Title VII provides equal protection to male and female victims of sexual harassment is well established—but because the Court both considered and oddly relied on sociocultural stereotypes about gender in the context of a sexual harassment claim.

It is illegal to discriminate in the terms and conditions of employment based on the gender of a person under Title VII of the Civil Right Act.  Sexual harassment is considered to be a form of sex discrimination under Title VII.  A Title VII sex harassment claim can be brought under two distinct theories of liability:  (1) economic quid pro quo; and/or (2) hostile environment.

Quid Pro Quo

n a quid pro quo sexual harassment case, “a supervisor relies upon his [or her] apparent or actual authority to extort sexual consideration from an employee.”  Hensen v. City of Dundee. “Have sex with me and you’ll get that promotion.”

Hostile Work Environment

In a hostile work environment Title VII case, a co-worker or a supervisor’s conduct is so severe or pervasive that the employee’s work environment is severely impacted.  “[W]hen a supervisor sexually harasses a subordinate because of the subordinate’s sex, that supervisor “discriminate[s]” on the basis of sex.”  Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986).  This is precisely what Title VII’s gender provisions guard against:  discrimination based on sex.

To prevail in a gender-based, hostile environment case, a worker must show that:

(1) he or she was subjected to verbal or physical conduct of a sexual nature;

(2) the conduct was unwelcome, and

(3) the conduct was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Ellison v. Brady, 924 F.2d 872, 875-76 (9th Cir.1991)

Element 1:  Conduct of a sexual nature

The evidence introduced by Lamas clearly showed that a female co-worker asked him to go out with her many times and several times expressed her desire to have sex with him.  In emails, she wrote, “I’ve been thinking of you a lot lately. I’ve been having crazy dreams about us in the bath tub yeah in the bath tub… Seriously, I do want you sexually and romantically!”

The Court found that the conduct indeed was sexual.  The court wrote, “She performed gestures simulating fellatio, and gave him a photograph of herself emphasizing her breasts and possibly without clothes on.  Her proposition was for sex, not a cup of coffee together.”

Did Lamas welcome the conduct?

Element 2:  “Welcomeness”

The Court next considered how the welcomeness element of the three-part prima facie case must be proved in a case involving a male victim and female harasser.  What kind of evidence must a male victim of sexual harassment produce to prove the sexual advances of a co-worker are not welcome?  The short answer is the obvious one:  a man must produce the same evidence that a woman needs to produce.

Lamas’s employer argued that men generally are more open than women to the sexual advances of a co-worker, and thus entitled to less protection than women under Title VII.   Lamas admitted that “most men in his circumstances” would have welcomed the invitations.  So, how did the Ninth Circuit respond to this sociocultural stereotypes?

The Court summarily rejected the stereotype.  Stereotypes are not evidence of anything.  “[W]elcomeness 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 [the woman’s] sexual propositions.”

“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.”  Though the reference to Marilyn Monroe is a stereotypical itself, the court’s message is clear.  The court pointed out that all workers have reasons to reject sexual advances by co-workers, including religious beliefs, fear of sexual harassment lawsuits, fear of complications in the workplace, fear of pregnancy or, as the Court explained, fears about facing two decades of child support payments (another stereotype).  Furthermore, the Court explained, “[Lamas] 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.”

The Court focused on the subjectivity of “welcomeness,” but also observed that welcomeness has an objective component.  To punish an employer under Title VII, the victim must express that the advances are unwelcome. Further, the victim must tell the employer about the harassment so it can investigate and respond to the allegations.

“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.”

Element 3:  Severe or Pervasive

The court reasoned that Title VII does not protect workers against “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing.”  Faragher v. Boca Raton, 524 US 775 (1998).

Title VII is meant to provide remedies to employees who are the victims of significant gender-based harassment and discrimination.  Title VII protects employees who are subject severe or pervasive sexual conduct.

Some conduct, such as a sexual assault of a co-worker, is severe enough to provide an immediate remedy to a worker under Title VII.  Clearly a sexual assault creates an abusive working environment.  But, less egregious misbehavior can also support a Title VII claim if:  (1) it happens often; and (2) it is of such nature that it is offensive to both the victim and a reasonable person in the victim’s circumstances.

Having a co-worker show off a “sexy” picture of himself (or herself) once at a company party might be objectively offensive. A single alcohol-driven transgression of a co-worker might not provide grounds for a Title VII claim, however.  But if a co-worker (male or female) displayed pornography on his (or her) computer in a cubicle shared with another worker on many occasions, it is likely enough to support a Title VII claim.  And, if this conduct is part of an attitude that fills the workplace with gender bias, the Title VII claim will likely survive.  If the cubicle mate’s objections and complaints were ignored by the employer, and the conduct continued, it could significantly and detrimentally alter the conditions of the workplace in violation of Title VII.

Most Title VII claims involve a series of such increasingly troublesome events, none of which alone would support a strong Title VII lawsuit.  But taken together, they often do.

Putting It All Together

By looking at the all of the circumstances of the workplace in Prospect Airport Services, the Ninth Circuit held that there was sufficient evidence of unlawful sexual harassment.   The conduct clearly was sexual.  And the victim repeatedly said he wanted the conduct to stop.  The co-worker’s conduct was pervasive and had a significant negative impact on Lamas’s employment, the quality of which had suffered as a result.  When the harasser told her co-workers about her efforts to seduce the victim, they laughed at Lamas and questioned his sexuality.  Lamas complained several times to his supervisors about the harassment, but nothing was done.

Flirting in the Workplace is not Illegal, but Unwelcome Sexual Harassment Is

The Ninth Circuit does not consider all romantic overtures, or even all sexual propositions, to constitute unlawful sexual harassment

People spend much of their lives with other people at their workplaces.  It is often where we meet and begin social relationships. Directly propositioning a co-worker to have sex might be incredibly cheeky and against company policy (it could get a person fired), but it does not violate Title VII.

“Had Munoz merely asked Lamas to go out on a date, or to see whether they might have a romantic relationship, or straightforwardly propositioned him for sex, and then quit when he clearly told her no, the EEOC would not have shown enough evidence to survive summary judgment.”

Does this mean that acting like a normal, socio-sexual human being at work is legal under federal law?  Undoubtedly so; but the definition of normal remains as subject to context, credibility and the uncertainties of the civil litigation system as ever before.

Has the Ninth Circuit now established federal guidelines for flirting at work that are applicable to men and women across the country?  Not really.  But, what the Court has done is to restate well-established principles of law: men and women have identical employment rights, as well as identical burdens of proof, in sexual harassment cases brought under the Civil Rights Act.


If you have questions about sexual harassment under Title VII, or under the California Fair Employment and Housing Act, please reach out to Patrick Kitchin at 415-677-9058, or by email to prk@kitchinlegal.com