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California Court Affirms That Same Sex Harassment Is Actionable Event

In March 2014, a California Court of Appeal in Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014) allowed a former intern’s sexual harassment suit to proceed against a former male supervisor and employer.

Brian Lewis, a heterosexual man, worked at the City of Benicia’s water treatment plant, first as a volunteer for four months in 2008, then as a paid intern 60-days in 2008, and finally, for a second stint for three months in 2009. During his tenure, Lewis reported mainly to Steve Hickman. Lewis asserted Hickman sexually harassed him by showing him sexually explicit images on an office computer, and telling him “risqué” jokes. According to Lewis, Hickman also gave him approximately 30 gifts, including “tuxedo underwear” with ruffles and a bow tie, hats, t-shirts, wine, shot glasses, and backpacks, frequently bought him lunch, and also asked him for a kiss and to visit Hickman’s home.

Lewis also asserted that another supervisor, Rick Lantrip, to whom he reported for a brief period, also sexually harassed him by displaying pornographic images in his general facility, telling “obscene” jokes at work, and by massaging or rubbing the shoulders of a female secretary in the presence of other employees.

Lewis further alleged that, after he complained to the City about the harassment and participated in the investigation of Hickman (which resulted in Hickman retiring in lieu of termination), the City retaliated against him by terminating his paid internship, prohibiting him from continuing to work at the water treatment plant, even on an unpaid basis, and falsely accusing him of workplace misconduct.

Lewis sued Hickman, Lantrip, and the City for alleged sexual harassment under the California’s Fair Employment and Housing Act (“FEHA”). He also sued the City for employment retaliation. The trial court granted summary judgment in favor of Hickman and Lantrip, and granted the City’s motion for judgment on the pleadings as to the sexual harassment claims finding that the City could have no liability for these claims because Lewis had no viable sexual harassment claims against supervisors Hickman and Lantrip. The trial court ruled that the Hickman’s alleged conduct did not constitute harassment because of Lewis’ sex, and the conduct was not severe or pervasive enough to create a hostile work environment actionable under FEHA. Following a jury trial on the retaliation claim, the jury returned a verdict in favor of the City. Lewis appealed.

The Court of Appeal reversed the trial court’s granting of Hickman’s motion for summary judgment. As the Court of Appeal explained, “sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex.”

Prior to 2013, California appellate districts had been divided as to the meaning of the phrase “because of sex,” with some courts’ ruling that the plaintiff needed to show evidence that the alleged harasser was acting out of genuine sexual interest, and others ruling that same-gender harassment could also consist of comments amongst heterosexuals designed to humiliate the plaintiff and challenge his gender identity.

In 2013, the California Legislature resolved this split among appellate courts by amending the FEHA to clarify that “[s]exually harassing conduct need not be motivated by sexual desire.”

In the present matter, even though the alleged harassing conduct took place before the new amendment to FEHA was in effect, the Court stated that it did not need to rule on the amendment’s retroactivity because “the present case allows an inference that Hickman was motivated by sexual interest.”

As the Court noted, many of Hickman’s alleged acts had sexual connotations. Based on this evidence, the Court ruled, a reasonable jury could conclude Hickman engaged in sexual advances, conduct or comments and acted from “genuine sexual interest.”

The Court, however, affirmed the granting of summary judgment in favor of the second supervisor, Lantrip indicating that the evidence was simply not enough to rise to the level of harassment actionable under FEHA.

With respect to the retaliation claim, Lewis argued the trial court erred in excluding evidence of the alleged sexual harassment and expert testimony regarding the emotional harm he suffered as a result of the alleged harassment. The Court agreed stating that “if Lewis had been permitted to present evidence of Hickman’s alleged sexually harassing conduct, the jury would have had a fuller understanding of the context in which Lewis’s protected activity and City’s adverse actions occurred.”

Consequently, the Court reversed judgment on the pleadings as to causes of action against the City for sexual harassment and failure to prevent sexual harassment. Furthermore, based on the erroneous exclusion of the evidence regarding sexual harassment, and expert psychological testimony at trial, the Court reversed the judgment as to the retaliation claim that had been rendered in the City’s favor by the jury.

What does this mean for employers?
This case serves as a strong reminder to employers to enforce its policies prohibiting harassment, and to ensure all employees are trained regarding appropriate conduct in the workplace. Moreover, employers should monitor their supervisors’ interactions with employees. Employers also want to be vigilant when dealing with any complaint of harassment, and must be detailed and thorough with its investigations of harassment complaints. Finally, employers should be careful when considering any adverse actions against those employees who have complained, and to ensure your actions are well supported by documentation and are the result of legitimate business reasons.

As previously indicated, last year, the FEHA was amended to clarify that “[s]exually harassing conduct need not be motivated by sexual desire.” As such, for purposes of determining whether sexual harassment occurred or not, whether or not the alleged conduct was motivated by sex desire should not be part of an Employer’s analysis.

ABOUT THE AUTHOR: Ms. Silva is a graduate of University of the Pacific. She is senior counsel in the firm’s Employment Practices Group. She is a former prosecutor and has considerable trial experience. Contact her at rsilva@tysonmendes.com

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