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Battle Against Same-Sex Harassment Comes Out of the Closet : Litigation: Experts figure that such cases make up 5% of workplace complaints. But the percentage could grow as gays become more vocal.


His twist on Hollywood's fabled casting couch mixes the cliche with the extraordinary.

Wayne Mogilefsky, a USC film school graduate with dreams of writing a box-office hit, landed a foot-in-the-door job at Silver Pictures. The studio's president, Michael Levy, encouraged the starry-eyed young man to submit an outline for a script--and he eagerly did so.

But then, according to Mogilefsky, Levy's interest in him emerged as more than strictly professional. On Valentine's Day, 1992, Levy asked Mogilefsky to spend the night in his hotel suite--implying that the screenplay's success hinged on the rendezvous, Mogilefsky claimed in a lawsuit against the studio.

Afraid that his hope of a movie contract was about to crumble, Mogilefsky showed up at the hotel, he said. When he refused Levy's sexual advances, Mogilefsky alleged, his boss spouted profanities at him.

For his part, Levy acknowledged that he asked Mogilefsky to his room, said his attorney, Howard Weitzman. But the meeting was solely for business purposes, and he never pressured Mogilefsky for sex, Weitzman said.

Eventually, Mogilefsky and the studio settled the suit out of court. But Mogilefsky is still so traumatized by the experience that he will not discuss it publicly, his attorney, James De Simone, said: "He just wants to put it behind him." Levy also could not be reached for an interview.

Although both men might just as soon forget the whole thing, Mogilefsky's accusations have been inked in law books for all to see. Earlier this year, Mogilefsky's lawsuit landed in the California Supreme Court, which upheld the state's first written opinion calling same-sex harassment illegal.


The term "sexual harassment" conjures up images of a power-happy lecher making passes at his female subordinate. Indeed, the vast majority of sexual harassment complaints are by women against men--with suits filed by men against women ranking a distant second.

But employment attorneys calculate that about 5% of harassment cases fall into the same-sex category. And, they say, that proportion could grow as gays become increasingly vocal about their rights as employees.

"There is a new political awareness in the gay community that makes gays less willing to allow themselves to be victimized," said attorney and gay activist Mickey Wheatley. "And, as gays come to see the law as protecting their rights in general, they will use the legal system more and more to stop discriminatory conduct."

Sexual harassment complaints across the board have soared over the past decade. During 1983, 629 sexual harassment suits were filed with the California Department of Fair Housing and Employment--where virtually all sexual discrimination claims originate before reaching the courts. The number of complaints has climbed steadily every year since, more than quadrupling by 1993 to 2,703.

"Victims of sexual harassment have become more confident that they are, in fact, victims," said Amelia Craig, staff attorney for the Los Angeles chapter of Lambda Legal Defense and Education Fund, a gay-rights organization.

The Department of Fair Housing and Employment does not break down sexual harassment suits by gender. "As long as the behavior constitutes sexual harassment, it doesn't matter if it involves a male and a female or two males or two females," said the agency's deputy director, Wanda Kirby.

Hundreds of same-sex harassment claimants have won monetary rewards in California due to that widely held attitude. Yet until Mogilefsky's case traveled through the courts, the state did not have any precedent prohibiting same-gender harassment.

Silver Pictures maintained that sexual harassment laws were not intended to cover same-gender situations. "As a feminist, I object to men taking advantage of a law meant to give women equal footing at the workplace," said Bonnie Eskenazi, a Los Angeles entertainment attorney who represented Silver Pictures.

Eskenazi said that sexual harassment laws become blurred when applied to same-gender situations. "A man can make a sexual joke to a group of other men without offending anyone, although the same comment could be offensive to a woman," she said. "It's a freedom of speech issue. Women say things to women and men say things to men that they would not feel comfortable saying in mixed company."

Mogilefsky's lawsuit initially was dismissed by a Los Angeles Superior Court judge, but an appellate court overruled that decision in December 1993. Silver Pictures settled the lawsuit for an undisclosed amount of money.

However, the debate raged on. A Sacramento law firm representing a consortium of employers asked the Supreme Court to "de-publish" the appellate court's opinion so that it could not be cited in future cases.

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