Monday, October 23, 2000

Staff Writer

The first same-gender sexual harassment case against Metro government has not paid off for the plaintiffs.

A jury in U.S. District Court decided last month that three male employees of the Metro Codes Administration were not entitled to any damages from the city or its zoning inspection chief, Don Swartz, whom they had accused of sexual harassment and retaliation.

Swartz testified that he is "100% heterosexual" and that zoning inspector Jeff Phillips and other employees were overly sensitive to jokes that he made at the office. Lawyers for Metro and Swartz contended that, while Swartz may have "made inappropriate use of language for the workplace," that did not constitute sexual harassment under the law.

Several lawyers who handle sexual harassment cases say it is harder to convince a jury that male-to-male sexual remarks create a "hostile work environment" than similar remarks between the sexes.

Lawyers had argued for years over whether the Civil Rights Act of 1964 was intended to bar sexual harassment within a gender, but the U.S. Supreme Court ruled in 1998 that it was possible for someone to sexually harass a person of the same gender, even if the "harassing conduct (was) not motivated by sexual desire." The Supreme Court said, however, "Common sense and an appropriate sensitivity to social context will enable courts and juries to distinguish between what is legal and illegal."

Swartz is still on the job, while Phillips, who made the initial complaint against Swartz in 1996, has been receiving a psychological disability pension since April 1999, based on a diagnosis of depression and post-traumatic stress disorder.

David Polhemus, a co-worker who backed up Phillips’ story, is also receiving psychological disability benefits from Metro, and Sam Carter, another inspector who testified for Phillips, was fired in 1998 after his superiors found he had falsified his Metro employment application and reports he filed as part of his job.

Attorney John Harris, who filed suit for Phillips, Polhemus and Carter, said he believes it is harder to prove sexual harassment when only men are involved. "I think people are more receptive to claims of harassment by a male against a female subordinate," Harris said.

The trial in the Swartz case "involved a question of whether it was harassment or just horseplay," Harris said.

"Ultimately, I think it was just a matter of common sense," Swartz’ lawyer, George Dean, said of the jury’s verdict.

Phillips said Swartz squeezed his thigh once, while they waited for a zoning hearing in General Sessions Court.

But Swartz said he "tapped" Phillips on the leg only after Phillips asked whether a man they saw in court was "his type."

"If you were truly trying to come on to somebody, would you do it in the middle of a courtroom?" Dean asked in an interview last week.

An equal-opportunity investigator who looked into the zoning inspectors’ allegations concluded that some of Swartz’ actions were inappropriate but not discriminatory. That finding resulted in Swartz being suspended from work for 10 days without pay.

"We found no evidence of sexual harassment or retaliation in our own internal investigation, but I felt that some of Don’s statements were inappropriate for the workplace," Metro codes director Terry Cobb said last week.

Swartz did not respond to messages that a reporter left at his office Thursday and Friday.

Harris has asked U.S. District Judge William J. Haynes Jr. for a new trial, and that request is still pending.

The suit against Swartz and Metro was not the first same-sex harassment case to be tried in federal court here. In 1995, a U.S. District Court jury awarded $75,000 in compensatory damages and $1.6 million in punitive damages to a former worker at the Waldenbooks warehouse in La Vergne who said the company did nothing in response to his complaints that an openly homosexual supervisor had repeatedly made sexual remarks to him, touched him and insisted that he accompany the supervisor on trips and come to parties at his home.

Senior U.S. District Judge Thomas Wiseman sharply reduced the amount of punitive damages, which resulted in a request for a new trial and an eventual out-of-court settlement, the terms of which were not disclosed.

Attorney Steve North, who represented the plaintiff in the Waldenbooks case, said Friday that sexual harassment cases "are very fact-specific."

"What might be normal behavior, or kidding around, in one context might be considered very offensive in another," North said.

The verdict in the Waldenbooks case was reached before the U.S. Supreme Court ruled in 1998 that it was possible for someone to sexually harass a person of the same gender, even if the "harassing conduct was not motivated by sexual desire."

The nation’s highest court ruled that a worker on an offshore oil rig in Louisiana could pursue his sexual harassment suit against three male co-workers who, he said, threatened him with rape and physically assaulted him.

The oil rig worker and his former employer reached an out-of-court settlement seven months after the Supreme Court ruling. The terms were not disclosed.

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