Special Handling

It's a guy thing: Two UPS men claim sexual harassment by another man.

At age 37 but looking younger, Michael Garcia, a former schoolboy baseball and football player, keeps in shape by working out four days a week. Two of those days he trains at a nearby dojo, where he refines his skills in tae kwon do, a Korean martial art he has studied for more than twenty years and in which he holds a black belt. There are very few people he fears.

But, he says, none of that mattered when in late December 1995, a supervisor named Lyle Dutton approached him from behind at United Parcel Service's Denver warehouse, where Garcia works as a mechanic. "I was welding on a table, bent over," Garcia recalls, "facing my work surface," when Dutton reached under his buttocks and grabbed his testicles.

"I was pretty much shocked," Garcia recalls. "I just yelled his name--'Lyle!'--and went back to work." But that was just the beginning.

A week later, Garcia says, he was reading an employee bulletin board when Dutton approached him from behind again. "He pressed in close, extremely provocatively, pretending like he was trying to read the board," Garcia recalls. When Dutton rubbed his crotch against Garcia's rear end, Garcia pushed back and walked away.

The following month, on January 3, 1995, Garcia says that as he entered a tool truck, Dutton followed him. "At one point I had to walk by Lyle," he recalls. "And as I did, he stuck his radio antenna up my ass."

"Oh, you liked that, did you?" Garcia recalls Dutton saying.
"At that point I was furious," Garcia says. "I wanted to hit him--I wanted to. But I was afraid I'd get fired." So instead, he feinted two punches and then lowered his shoulder into Dutton, pushing him out of the way. Outside the tool truck, the altercation continued. "I called him a chickenshit--a bunch of names," Garcia recalls. "I wanted him to take a swing so I could be in the right and knock his ass off."

But Dutton didn't bite. Garcia eventually complained to his bosses. They didn't fix the situation to his satisfaction, so four weeks ago he filed a lawsuit in U.S. District Court.

Whether the law is on his side is hardly clear, though. As Garcia's case winds its way to completion, for instance, it might matter that Garcia is a married heterosexual man. Or that he could have hurt Dutton if he'd wanted to. Or the deciding factor could be that Dutton, who Garcia says commonly bragged about going to strip bars and having heterosexual adventures, is not a confirmed homosexual. The whole series of incidents could be dismissed as manly horseplay.

Trying to sort out what sexual harassment means has become one of the hottest topics in federal courtrooms lately. "Because of the courts' resistance and befuddlement in dealing with these types of cases, there's been an inordinate amount of them recently," confirms Gregory Eurich, a Denver attorney specializing in civil-rights litigation.

The laws' words are clear: Federal and state statutes ban employment discrimination "because of...sex."

What perplexes judges these days is what to do when a man sexually harasses another man, or a woman a woman. As is often the case with most topics snarled in gender politics, untangling how civil-rights laws apply to such touchy situations has become time-consuming, hair-splitting--and, in some instances, tortuous.

Trade publications estimate that federal judges have wrestled with close to two dozen same-sex discrimination disputes during the past year alone. A review of them suggests that, in some instances, the first hurdle victims face can be convincing a federal jurist that sex discrimination is not strictly a female job hazard.

In an Illinois case, for instance, a gas-station worker contended that his male boss "touched, grabbed and kissed" him. Too bad, the judge replied in an opinion written last year: Federal sex discrimination laws were intended to correct inequitable treatment of women in the workplace, not men.

Other recent cases show that federal judges are struggling with how to handle behavior between men that traditionally has been passed off as "locker-room" antics or "horseplay." In a case decided last year, for example, a male worker at Baltimore Gas & Electric complained that his boss intentionally bumped into him, held a magnifying glass over his crotch and gave him a big congratulatory kiss at his--the employee's--wedding. The case was dismissed in favor of the utility company.

Initially, so too was the now-notorious "bagging" case. In that instance, a male worker at the Donaldson Co. in Minnesota complained of the widespread company practice of grabbing and squeezing other men's testicles. By his own count, the man (whose name was Quick) had been "bagged" 100 separate times by 12 different men. Unsympathetic, Quick's boss instructed him to "bag back." In 1995 a federal district court found that the behavior was, despite the apparently essential involvement of the male genitals, not sexual, but rather a form of "hooliganism."

A federal appeals court reversed that reasoning last year. Still, such thinking--latent boys will be latent boys--persists. Late last year, for instance, a worker on an oil rig complained that while other employees pinned him down, his boss placed his genitals on him. The supervisor also allegedly sexually assaulted him with a bar of soap. The judge concluded that sex harassment couldn't occur between two men, however, and dismissed the case.

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