An on-going debate has been whether same sex harassment requires a sexual motive on the part of the harasser. The general rule is, under both state and federal laws and the regulations of the governmental agencies responsible for these laws, that sexual harassment occurs between members of the same gender if the plaintiff can establish the harassment was discrimination based on sex. Oncale, 523 US 79; Singleton vs. US Gypsum, 140 Cal. App 4th 1547 (2006). The harassing misconduct needs not to be inspired by the sexual desire of the harasser. In the Singleton case same-gender harassment composed of sexual comments designed to humiliate and challenge the victim were actionable as harassment because of sex.
So, as California’s leading employee only law firm, are pleased to report that out of Solano County comes a plaintiff’s procedural verdict which reversed the trial court and found that a jury could infer sex harassment in a same-sex case where the acts complained of (hold on, you’ll love these!) were clearly sexual in nature. Lewis vs. City of Benicia, No FC034334. These included about 30 gifts such as tuxedo underwear, hats, T shirts, wine, shot glasses and backpacks. The harasser would buy lunch and other meals for the other. Finally, the harasser asked for a kiss and that the victim visit his home.
The company tried to claim that evidence of some consent to these acts wiped the slate clean. Further, that these acts constituted “mere banter among co workers” as a defense would not fly. Finally, defendants claimed that the alleged harasser was simply giving extra “attention” to the intern-victim. Viewing the evidence most favorable to the plaintiff, the court allowed the case to go to the jury.
A second “prong” (one or the other, either severe or pervasive misconduct) is the pervasiveness of the misconduct based on sex harassment. The legal test is whether the hostile work environment was so severe or pervasive as to alter the conditions of employment and create a work environment hat qualifies as hostile or otherwise abusive to victim-employees because of sex. Aguilar vs. Avis Rent a Car System, Inc. 21 Cal. 4th 121, 130 (1999). Adding to the above examples behavior which included sexual jokes and displaying pornography on the computer over a periof of a few months, the court found that the jury could find pervasive conduct.Of interest, the court opined tghat whegther the victim’s work performance declined might be a factor in determining the pervasiveness of the misconduct. Harris vs. Forklift Systems, Inc., 510 US at 23.
Finally, the court reversed the trial court’s dismissal of the retaliation claim. The plaintiff, Lewis, alleged that the City retaliated against him by terminating his internship, falsely accusing him of workplace misconduct and of providing false information in a work comp claim based on an ankle injury. The plaintiff had been denied the right to introduce evidence of sexual harassment and expert psychological testimony and the judgment against plaintiff was reversed for a new trial.
We take extreme exception with the City of Benicia’s actions in this case. Apparently their own third party investigator confirmed the allegations and indicated it would be unreasonable for the victim to have fabricated these facts as he had no motive to lie. The harasser was given the option of returing in lieu of termination. Wonder how much his pension is!