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.

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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.

The ACLU Foundation of California argued that the decision should remain on record, and the Supreme Court unanimously agreed. “All people are entitled to come to work and do their job without being subjected to the humiliation of sexual harassment,” said Carol Sobel, senior staff counsel for the ACLU.

Two years ago, the Advocate--a Los Angeles-based magazine for gays and lesbians--briefly attempted a similar defense when slapped with a same-gender harassment suit by a former warehouse employee. Attorneys for the journal filed court papers contending that same-sex harassment was not covered by California laws.

“For the Advocate to take this position, sending a message to gays and lesbians that they are not safe from sexual harassment, was the ultimate hypocrisy,” said Wheatley, the plaintiff’s attorney.

In response to a barrage of criticism, the Advocate withdrew that controversial line of defense and issued a statement saying it “would never want to harm the gay and lesbian community.” The magazine settled the suit out of court last year.

Same-gender sexual harassment encompasses a number of situations: a gay man harassing another gay man or, though rarer, a lesbian harassing another lesbian; a heterosexual taunting a homosexual; a homosexual supervisor making advances toward a heterosexual subordinate.

Regardless of the perpetrator’s sexual orientation, harassment usually is driven by anger and insecurity as much as by attraction, said Laguna Beach psychologist Richard Ammon.

“It derives from a need to control and dominate,” Ammon said. “The only way that the harasser can feel good about himself is by feeling that he has power over somebody else.”

Sometimes, what starts out as an innocent crush deteriorates into a self-perpetuated downward spiral, he added: “If you are a supervisor and you express interest in a subordinate, for a split second you have reversed the roles. If his or her answer is no, and you start using your position of power to coerce and manipulate, that’s when harassment begins.”

Sexual harassment frequently goes unreported. A recent poll conducted by Lou Harris & Associates showed that 60% of interviewees who believe they have been harassed took no action.

“A woman might balk at reporting sexual harassment because she faces the presumption that she brought it on herself--she’s a flirt, she dresses provocatively,” said Carla Barboza, a Los Angeles attorney who specializes in sexual harassment cases. “A man, on the other hand, has trouble reporting sexual harassment because he could look like a wimp.”

For gays and lesbians, those preconceptions cut both ways. “Gays are viewed first and foremost as sexual beings,” Barboza said. “So it’s hard for some people to understand that gays don’t welcome any and all sexual advances.”

An even bigger deterrent, though, can be the fear of divulging one’s homosexuality at the office. In heterosexual-dominated corporate America, gay people labor under the weight of homophobia--subtle and overt.

“The closet is a very powerful force for some people,” Wheatley said. “Someone trying to protect his sexual orientation may be hesitant to report same-sex sexual harassment at his workplace for fear that people then will suspect him of being gay.”

Robert, who requested that his last name not be used, said that he tolerated his supervisor’s harassment for more than a year--until he was fired after requesting a transfer. “I worried that I would be discriminated against if people knew I’m gay,” said the 32-year-old Laguna Beach resident, a professional restaurant manager.

He recently filed suit against his former employer, Sizzler International Inc. of Los Angeles. A lawyer for the restaurant chain declined to comment on pending litigation.

The harassment started, Robert claims, with an occasional inappropriate compliment from his boss, such as, “You have a nice body.”

Then the passes became physical and relentless. “He fondled me, asked questions about my personal life and kept insisting we go out,” Robert said. “I felt nervous, threatened, violated. But I didn’t quit because I needed the job.”

Further inhibiting them from complaining, gays often resist “tattling on one of their own,” said Ammon, who specializes in counseling gays and lesbians. “We are a subculture that has been persecuted and discriminated against, so we try to protect each other.”

James Brown said he found the idea of reporting his boss’ sexual misconduct--and, in the process, inadvertently “outing” a fellow gay man--so repugnant that he instead quit his job. “I didn’t want to portray gay people in a negative way,” said the 28-year-old Santa Cruz resident. “I felt that complaining about him would not be politically correct, that I shouldn’t damage the career of another gay person.”

Brown claims in a lawsuit that he was harassed by Robert Hoffman, the founder of an Oakland psychological counseling center, while working there as an office manager three years ago.

“I started getting offers of promotions in exchange for being his lover,” Brown said. “It undermined my self-confidence; I couldn’t come up with a solution other than to leave my job for a lower-paying position.” Brown filed suit a year later, in December of 1992. “I realized I didn’t want other people to go through what I went through,” he said. The suit is scheduled for trial early next year.

Pamela Sayad, a San Francisco attorney representing Hoffman--a divorced man with children and grandchildren--said “there is absolutely no truth to the allegations.”

Unless there are witnesses, charges of sexual harassment can come down to one person’s word against another’s.

Sharon, who requested that her last name not be used, said she knows the trauma--and long-term effects--of being accused falsely of behavior she would never commit. A “line producer” who manages movie production budgets, she saw her reputation and career disintegrate beneath a heap of unchecked gossip.

Four years ago, the Los Angeles resident was working on a prized project when the executive producer called her into his office and dropped a bomb. The film’s star, he said, had told crew members that Sharon sexually harassed her. He then persuaded her not to risk disrupting the actress’s performance with a confrontation.

“I couldn’t imagine where she got this idea,” said Sharon, a lesbian who was not out of the closet. “One time I asked her if she needed a ride; I can only guess that she thought I was making a pass and then embellished on the encounter. Yet I couldn’t even talk to her about it and clear my name.”

Although her ordeal did not involve a lawsuit, it continues to haunt her. “I suspect it has affected my references,” Sharon said. “I notice people are wary of me, and I don’t have as many opportunities to work as I once did.”

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Gay men in mostly male workplaces such as police departments are particularly vulnerable to same-sex harassment when a heterosexual scorns a homosexual, said Lambda attorney Craig.

“It is motivated by a hatred of gays because they do not fit the stereotype of what ‘real men’ are supposed to be,” she said.

One such case involves a former California Highway Patrol officer, who filed a lawsuit against the agency last year. Thomas Figenshu, a 10-year veteran of the CHP and one of its youngest sergeants, went out on disability leave in 1992 after allegedly suffering verbal and physical abuse by his colleagues.

His horror story includes accusations that officers in the CHP’s West Los Angeles office referred to him as “Sergeant Fag-in-shoe,” stuffed threatening notes in his mail slot, made crank calls to his house and urinated in his wardrobe locker.

Figenshu declined to be interviewed. His lawyer described him as “emotionally distressed and tremendously disappointed.”

“Tom was an outstanding, conscientious officer,” said Los Angeles attorney Scott Silverman. “He worked very hard to achieve his success and--for no rational reason at all--he has lost his career with the Highway Patrol.”

A deputy attorney general representing the CHP said the agency denies Figenshu’s allegations.

Lambda attorney Craig said that California courts can expect to see more same-gender sexual harassment suits now that the state Supreme Court has affirmed their validity. She advised employers to educate workers about all variations of sexual harassment.

“Companies make the mistake of assuming that everyone is heterosexual,” Craig said. “If you start with the assumption that some people are gay and lesbian, you will do a lot of things differently.”