On September 3, 2010, the Ninth Circuit Court of Appeals held that a jury could reasonably find that a man who alleged that a married female co-worker made unwanted sexual advances for more than six months, could have perceived them sufficiently severe and pervasive to constitute sexual harassment.

The plaintiff alleged that the female co-worker's harassment included passing him a series of three notes making explicit sexual advances, enlisting other co-workers to relay messages to him and making suggestive comments and gestures at work every time she walked by.  The female co-worker continued despite plaintiff repeatedly telling her that he was not interested and to stop.  The plaintiff alleged that after about four months of rebuffing her advances, co-workers began to speculate that he was a homosexual.  The plaintiff alleged that the harassment affected his job performance which lead to a demotion and his eventual termination.

The Ninth Circuit's decision overruled a Nevada district court that had dismissed the case before it could proceed to a jury.  In dismissing the case, the lower court noted that the plaintiff admitted that most men would have welcomed the advances, that the plaintiff never filed a written complaint and management told the female employee her behavior was inappropriate.

The appellate court disagreed. 

"It cannot be assumed that because a man receives sexual advances from a woman that those advances are welcome...  [T]hat is a stereotype and welcomeness is inherently subjective." 

The court held that the plaintiff's Christian beliefs and his recent widowerhood as well as his alleged efforts to seek medical services to deal with the anxiety it caused him were more than sufficient to allow a jury to find that the advances were unwelcome.

The appellate court also found that a jury could reasonably believe that the plaintiff perceived his working environment as abusive because management did little about his complaints.  Although a manager (who was not plaintiff's immediate supervisor) told the female employee that her behavior was inappropriate, management did nothing when it allegedly became aware that she did not stop.  The court wrote:

"Men as well as women are entitled under Title VII to protection from a sexually abusive work environment."

Read the full text of the decision here.