Same-Sex Harassment at Work

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California law prohibits sexual harassment and offers protection to workers against employment benefits being conditioned on submission to or tolerance of unwelcome sexual advances and a work environment that is hostile or abusive on the basis of sex.(1)

The topic of workplace sexual harassment typically comes up in the mixed gender environment, with the quintessential example of a male supervisor making unwanted sexual advances toward female subordinate.

Such conduct also occurs between members of the same sex, even if both employees are, ostensibly, heterosexual. A recent appellate decision dealt with this issue and allowed plaintiff, a heterosexual man, to proceed against his supervisor on a sexual harassment claim.(2)

Brian Lewis sued his former employer City of Benicia and two former supervisors. Lewis testified that his former supervisor Hickman showed him pornographic images on Hickman’s computer, told Lewis “risqué” jokes, gave Lewis about 30 different items as gifts, including “tuxedo underwear” and wine, frequently bought lunch for Lewis, invited Lewis to his home and on one occasion said: “[W]hy don’t you just kiss me[?]” Lewis testified also that he felt he had to participate in some of this activity to fit in, did not want any of the gifts and felt uncomfortable. The court found that an inference could be made that Hickman was pursuing a romantic relationship with Lewis and allowed Lewis to pursue a claim of sexual harassment against Hickman (who argued that his conduct was innocuous and a “mere banter as among male co-workers”).

An employee like Lewis does not have to prove that the person harassing him is a homosexual. The judge or jury may infer sexual motivation regardless of how people identify themselves. Ultimately, what matters is that the perpetrator harasses or discriminates because of sex. For example, a jury might find such discrimination when a woman is harassing a female victim, motivated by general hostility to the presence of women in the workplace.(3)

The law imposes a powerful penalty on those who engage in sexual harassment at work. Under California Fair Employment and Housing Act (FEHA), an employee who harasses another employee may be personally liable for any harassment even if their manager or company knew of the conduct or failed to take appropriate corrective action.(4)

  1. Miller v Department of Corrections (2005) 36 Cal. 4th 446, 461; Gov. Code § 12900 et seq)
  2. Brian Lewis v City of Benicia (2014) 224 Cal. App. 4th 1519
  3. See generally Oncale v Sundowner Offshore Services, Inc. (1998) 523 U.S. 75
  4. Gov. Code § 12940, subd. (j)(3)
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