By Alan Prendergast
By Michael Roberts
By Michael Roberts
By Amber Taufen
By Patricia Calhoun
By William Breathes
By Michael Roberts
By Melanie Asmar
The most recent tangle that federal judges appear to be struggling with in same-sex harassment cases is of sexual attraction--that is, whether it matters if either or both of the men (or women) are straight or gay. The most high-profile of these cases began nearly a decade ago.
In 1987 the government of Fairfax County, Virginia, hired a young man as an automobile mechanic for the county's garage. The climate there was decidedly manly.
The all-male work force called themselves the "lube boys." According to a subsequent court filing, they "focused heavily on sex. Pornographic materials were displayed in the bathrooms, centerfold pictures and calendars depicting scantily clad women appeared in and around tool boxes, off-color cartoons were circulated, and the radio often was tuned to talk shows that featured explicit sexual references."
Two years later their behavior became more personal. In 1989, a court filing continues, the lube boys began "asking [the mechanic] about his sexual activities, exposing themselves to him, and placing a condom in his food. There also were physical assaults. At least three times his hands were tied together, and he was blindfolded and forced to his knees. During one such incident, a co-worker placed a finger in the plaintiff's mouth to simulate an oral sexual act; during another, a broomstick was placed against his anus."
To an outsider, such harassment might seem sexual. But last year the U.S. Court of Appeals for the Fourth Circuit determined that sex really had nothing to do with it. In fact, the judges suggested that in order for federal sex-harassment laws to apply, the lube boys would have to be gay or bisexual--that sex harassment could not occur without genuine sexual attraction. "The kind of shameful heterosexual-on-heterosexual conduct involved here is not specifically because of the victim's sex," the judges reasoned.
Yet even the presence of an aggressive gay supervisor is no guarantee of legal victory. In one recent East Coast case, a heterosexual worker at Pizza Hut expressed his concern that his openly gay supervisor was pressuring him into having sex. (So, for that matter, were his co-workers, many of whom were both male and gay and who would press against him suggestively and invite him to have sex.) When the worker sued, though, a federal judge decided such male-to-male behavior wasn't covered under federal sex-discrimination laws.
Last fall a higher court reversed that decision. Indeed, much of what is muddying the same-sex discrimination waters is that judges are ruling every which way. Some of them--including a Colorado judge--have interpreted federal civil-rights laws as applying to any unwanted harassment containing sexual overtones, regardless of the perpetrator's or victim's gender. That Colorado case has a very familiar ring to it: It involved both UPS and Lyle Dutton.
Michael Gerd had worked for UPS since 1985 when, in late 1993, he began getting sexually harassed, according to a lawsuit filed last year in U.S. District Court. (Gerd quit working at UPS in 1994 and has since moved to Argentina, according to his Denver lawyer, Randal Kelly.)
At first it was little more than taunts: "Are you sure you don't just shack up with a different guy each night?" one supervisor asked Gerd, who is gay. In early November 1993 the harassment allegedly became physical, when Dutton grabbed Gerd's buttocks--something he reportedly did at least twice more over the next month. When Gerd reported the behavior to his supervisors, one of them reportedly replied that Gerd should relax. "Dutton grabs everyone," the supervisor said, laughing.
Another supervisor told Gerd that because he was bigger than his tormenters, he shouldn't be bothered by their behavior. The supervisor also suggested that such raunchy conduct among men should be expected at a corporation that had been founded as a rough-and-tumble trucking company.
Dutton could not be reached for comment. However, his attorney says he did nothing wrong. "Lyle denied the allegations, and they were never proven," says Thad Oviatt. And, he continues, even if Gerd's claims of harassment occurred as alleged, they didn't merit a lawsuit. "The stuff contained in the allegations was the type of thing I saw all the time through high school and college working on construction sites," Oviatt says. "It was crude, but it was horseplay. I never dreamed it would ever be called sexual harassment. But today people will sue each other for anything."
In its defense, UPS cited the various cases across the country in which federal judges had ruled that same-sex harassment couldn't occur under the current laws and asked that Gerd's lawsuit be dismissed. But last August Judge Lewis Babcock refused, ruling that same-sex harassment was covered under federal law. In December 1996 UPS and Gerd settled out of court. (Dutton was dismissed as a defendant in the case after writing a letter of apology to Gerd, although Oviatt says the letter was more an expression of sympathy from Dutton that Gerd felt bad.) Although the settlement deal with UPS was confidential, Kelly confirms that his client walked away with some cash.
Garcia hopes to do the same with his lawsuit. "This wasn't about money at first," he says. "But now it's definitely about money."