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.
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."
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"It's not something I wanted to do," he adds. "It's something I felt I had to do, or it would have escalated. I was treated like I was the perpetrator. And I didn't do anything; I was the victim. I feel like I'm a very strong person, physically and emotionally. And I'm a very tolerant person. But this was too much."
Garcia's lawsuit, which was filed May 1, names Dutton as an alleged harasser but not as a defendant. Kelly says UPS fired Dutton last year. An attorney for UPS did not return phone calls for this story.
After taking ten weeks off in the winter of 1996 for emotional distress he says he suffered when his supervisors did nothing to remedy Dutton's harassment, Garcia is now back at work. "It hasn't been easy," he says, adding that a lot of his co-workers continue to be mystified by a man feeling sexually threatened by another man. "If it wasn't me, I'd joke about it, too.