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A divided appeal court voted en banc Tuesday to let a gay man pursue a sex discrimination claim against Las Vegas’ MGM Grand Hotel, even though federal civil rights law doesn’t protect individuals from bias based on sexual orientation. “That the harasser is, or may be, motivated by hostility based on sexual orientation is … irrelevant, and neither provides nor precludes a cause of action,” 9th U.S. Circuit Court of Appeals Judge William Fletcher wrote in a lead opinion joined by four judges. “It is enough that the harasser [has] engaged in severe or pervasive unwelcome physical conduct of a sexual nature.” Four judges out of the 11-member panel dissented, arguing that Title VII of the 1964 Civil Rights Act clearly doesn’t provide protections for sexual orientation discrimination. “If sexual orientation is to be a separate category of protection under Title VII,” Judge Procter Hug Jr. wrote for the dissenters, “this is a matter for Congress to enact.” Rene v. MGM Grand Hotel Inc., 02 C.D.O.S. 9823, was brought by Medina Rene, a former butler who claimed his supervisor and several fellow employees on an all-male staff subjected him to a hostile work environment between 1993 and 1996 because he is gay. He said his co-workers whistled at him, blew kisses, called him sweetheart and touched his body “like they would to a woman.” Las Vegas U.S. District Judge Philip Pro granted summary judgment to the MGM Grand Hotel, concluding that Title VII applies only to gender bias and not sexual orientation discrimination. A three-judge 9th Circuit panel ruled 2-1 last year to uphold Pro, only to find themselves reversed Tuesday by a majority of the court en banc. That group ruled that sexual orientation is simply irrelevant for the purposes of Title VII. “The premise of a sexual touching hostile work environment claim is that the conditions of the work environment have been made hostile ‘because of … sex,’” Judge Fletcher wrote. “The physical attacks to which Rene was subjected, which targeted body parts clearly linked to his sexuality, were ‘because of … sex.’” “Rene’s tormentors,” he wrote, “did not grab his elbow or poke their fingers in his eye. They grabbed his crotch and poked their fingers in his anus.” Judges Stephen Trott, Sidney Thomas, Susan Graber and Raymond Fisher joined in the ruling. Judge Harry Pregerson — who was joined by Judges Trott and Marsha Berzon — concurred with the result, but wrote separately to say that Rene could sue for gender-stereotyping harassment — as the 9th Circuit held last year in Nichols v. Azteca Restaurant Enterprises Inc., 256 F.3d 864. “In both cases, a male gay employee was ‘teased’ or ‘mocked’ by his male co-workers because he walked ‘like a woman,’” Pregerson wrote. “And in both cases, a male gay employee was referred to by his male co-workers in female terms … to ‘remind [him] that he did not conform to their gender-based stereotypes.’” In his dissent, Judge Hug pointed to Oncale v. Sundowner Offshore Services Inc., 523 U.S. 75, the U.S. Supreme Court’s 1998 ruling that allowed suits based on same-sex harassment. “While the court held in Oncale that same-sex harassment can be actionable under Title VII,” Hug wrote, “it did not hold that same-sex harassment because of sexual orientation is actionable under Title VII.” Chief Judge Mary Schroeder and Judges Ferdinand Fernandez and Thomas Nelson joined in the dissent. Las Vegas lawyer Elayna Youchah, a Schreck Brignone partner who represented MGM Grand, didn’t return a phone call seeking comment Tuesday. But Shelley Mansholt, a spokeswoman for MGM Mirage, the parent company of the MGM Grand Hotel, said company officials are consulting with their lawyers about their next step, which could include an appeal to the U.S. Supreme Court. “The allegations set forth in the complaint have never been before a jury and, therefore, have not been established,” she said. “We do not believe the evidence in the case will support Mr. Rene’s position.” Richard Segerblom, a solo Las Vegas employment lawyer who represented Rene, was elated by the victory, and called it “incredibly important from the legal perspective.” “The 9th Circuit has gone against the tide and gotten to the big issue that if it’s sexual harassment, it’s sexual harassment,” he said. “If they’re grabbing you by the balls, then it’s sexual harassment.” Meanwhile, he said, Rene is now a waiter in Palm Beach, Fla., and, unfortunately, “says he’s still getting harassed.”

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