Sexual Orientation Harassment Committed by Homosexuals Not Actionable in 10th Circuit

In Medina v. Income Support Division (ISD) of the State of New Mexico, No. 04-2166 (10th Cir. June 28, 2005) Plaintiff-Appellant Rebecca Medina sued her former employer for a gender-based hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964. The District Court granted summary judgment in favor of ISD on both claims, reasoning as to the harassment claim that Ms. Medina was not discriminated against "because of sex"Plaintiff alleged that she was harassed by her supervisor and several co-employees who are all (according to the court's opinion) lesbians. The harassment included receiving an e-mail from her supervisor depicting a woman in an aisle at K-Mart bending over in a skirt and exposing her genitals. The e-mail stated that if more women had engaged in similar behavior, K-Mart might not be in financial straits. After receiving the e-mail, the Plaintiff complained to her supervisor that it was offensive but was only met with laughter. The plaintiff suffered several similar incidents of harassment for which she complained and was ignored.

In bringing her same-sex harassment claim, the Plaintiff relied on Bibby v. Philadelphia Coca-Cola Bottling Co., 260 F.3d 257, 263-64 (3d Cir. 2001)in arguing that the harassment was actionable because it was based on gender stereotypes. In rejecting her claim, the court responded: "Here, however, there is no evidence--and no claim--that Ms. Medina did not dress or behave like a stereotypical woman. Instead, Ms. Medina apparently argues that she was punished for not acting like a stereotypical woman who worked at ISD--which, according to her, is a lesbian. We construe Ms. Medina's argument as alleging she was discriminated against because she is a heterosexual. Title VII's protections, however, do not extend to harassment due to a person's sexuality [sexual orientation.]"The circuits have really begun to split hairs in this area as to what is same-sex harassment based on sex, what is based on sexual stereotype, and what is based on sexual orientation. These are awfully fine shades of motive to attempt to properly address in a summary proceeding.