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With a regretful tone, the 9th U.S. Circuit Court of Appeals held Thursday that a gay man in Nevada could not pursue a sexual discrimination claim against an employer because federal civil rights law does not protect individuals from discrimination based on their sexual orientation. “In determining the motivation for harassment, courts must be mindful of the fact that Title VII protects against discrimination only on the basis of race, color, religion, sex or national origin,” wrote Judge Procter Hug Jr. in a 2-1 split decision affirming a federal district court judgment to dismiss the case. Hug wrote that the term “sex” refers to “gender” and that the two terms are used interchangeably in the context of Title VII, a statute in the Civil Rights Act of 1964. Plaintiff Medina Rene was a butler at the Las Vegas MGM Grand Hotel, where he worked on the 29th floor in an area reserved for wealthy guests, and where he alleges he was harassed by the all-male staff and a male supervisor because he is gay. “The degrading and humiliating treatment Rene contends that he received from his fellow workers is appalling, and is conduct that is most disturbing to the court. However, this type of discrimination, based on sexual orientation, does not fall within the prohibitions of Title VII,” Hug wrote. Hug noted that the 9th Circuit in 1979 already decided the issue. In DeSantis v. Pacific Tel. and Tel. Co., 608 F.2d 327, 329-30, the court held that discrimination based on sexual orientation is not subject to liability under Title VII. “While societal attitudes toward homosexuality have undergone some changes since DeSantis was decided, Title VII has not been amended to prohibit discrimination based on sexual orientation.” Central to the case was a 1998 decision by the U.S. Supreme Court in Oncale v Sundowner Offshore Services Inc., 523 U.S. 75, 81. In Oncale, the court rejected a Fifth Circuit ruling, deciding instead that employees could sue for same-sex harassment under Title VII. But Hug said Oncale drew some distinctions between being able to sue for harassment because of sexual orientation and being able to sue for discrimination. Based on Oncale, Hug said Rene failed to prove that his harassers were motivated by sexual desire, that the harassers were motivated by a general hostility toward the presence of men in the workplace, and that Rene was treated differently. In dissent, Senior Judge Dorothy Nelson wrote that someone’s sexual orientation would not provide a defense for a gay male who harasses a female. “That Rene’s attackers were heterosexual men is no basis for a different outcome — the attack was homosexual in nature,” Nelson wrote. “Rene’s attackers may have targeted him for sexual pleasure, as an outlet for rage, as a means of affirming their own heterosexuality, or any combination of a myriad of factors �. The effect was to humiliate Rene as a man. Enforcing Title VII in the mixed-gender context does not involve determining which pleasure center in the attackers’ brains was stimulated by the attacks, nor should it in this case. “ The case is Medina Rene v. MGM Grand Hotel Inc., C.D.O.S. 2515.

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