Recent Developments Regarding the FLMA and the ADA

The following is a brief discussion of recent notable decisions affecting employers with regard to the provisions of the Family Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA"), their provisions and employer's defenses to claims pursuant thereto.

Sexual Orientation is Irrelevant in a Title VII Sexual Harassment Claim

The Ninth Circuit Court of Appeals held in Rene v. MGM Grand Hotel, Inc. ("Rene"), that an individual's sexual orientation is irrelevant in a sexual harassment claim brought pursuant to Title VII. The plurality's opinion, which reversed and remanded summary judgment in favor of the employer, MGM Grand, can be summed up by Justice Fletcher's comment: ". . . an employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment." Expanding thereon, Justice Fletcher stated: "That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant . . .. It is enough that the harasser have engaged in severe or pervasive unwelcome physical conduct of a sexual nature."

Rene, an openly gay man, brought an action against his employer, MGM Grand, alleging he had been sexually harassed because he is homosexual. Rene alleged that over a two year period, his male supervisor and several co-workers subjected him to a hostile work environment on an almost daily basis, including whistling and blowing kisses at him, calling him "sweetheart" and "mueca" (Spanish for "doll"), telling crude jokes and giving sexually-oriented "joke" gifts, and forcing Rene to look at pictures of naked men having sex. Rene testified at deposition that his co-workers caressed and hugged him and "touch[ed] [his] body like they would to a woman," grabbed him in the crotch and poked their fingers in his anus through his clothing. Rene testified he believed that the behavior occurred because he is gay.

The Court equated the attacks to which Rene was subjected to those complained of in Oncale v. Sun downer Offshore Servs., Inc. (1998) 523 U.S. 75, as Oncale had also been physically assaulted in a sexual manner by his male co-workers. In Oncale, the U.S. Supreme Court found that same-sex harassment is cognizable under Title VII and that the plaintiff need not show he was treated worse than members of the opposite sex; it was enough to show that he suffered from discrimination in comparison to other men. The Court also found that the...