In Lewis v. City of Benicia, 2014 Cal. App. LEXIS 282 (Cal. App. 1st Dist. Mar. 26, 2014), the California Court of Appeal reversed the order of the Solano County Superior Court granting one defendant’s motions for summary judgment and judgment on the pleadings on plaintiff’s sexual harassment claims and reversed the jury trial’s verdict and judgment on plaintiff’s retaliation claim.
Lewis, a heterosexual male, and former city volunteer and intern, claimed he was harassed by two male supervisors, Hickman and Lantrip. Lewis further claimed he was retaliated against for blowing the whistle against them and participating in an internal investigation. Lewis claimed that Hickman repeatedly exposed him to graphic pornography at work, made sexual jokes, paid for numerous lunches and gave him unwanted gifts, such as a pair of boxer shorts, wine, picnic baskets, apparel, hats and scarves. He further claimed that Lantrip also exposed him to pornographic images on his computer and told obscene jokes.
In a pretrial ruling, the trial judge threw out the allegations of sexual harassment, finding they were not directed at Lewis because of his sex and were not “so severe or pervasive that they created a hostile work environment.” The judge also excluded any evidence of the alleged sexual harassment at trial.
On the same-sex harassment claims, the appellate court first noted that there is a split in authority among California courts “as to the evidentiary showing needed to support an inference that same-gender harassment constitutes discrimination on the basis of sex.” Some courts have concluded that “same-gender harassment consisting of sexual comments designed to humiliate the plaintiff and challenge his gender identity constitutes harassment because of sex within the meaning of FEHA,” and that “a plaintiff need not prove the alleged harasser was motivated by sexual interest.” Other courts, however, have concluded that “a harasser’s sexual comments and propositions cannot support an inference of discrimination based on sex unless the plaintiff presents evidence the alleged harasser was acting from genuine sexual interest.”
Despite the split, the appellate court decided that it need not determine which standard was correct because “a reasonable jury could infer [that Hickman] was pursuing a relationship with Lewis and was acting from genuine sexual interest.” Further, because of Hickman’s potential liability for sexual harassment, the defendant employer also could be liable for sexual harassment, and the court therefore reversed the grant of judgment on the pleadings in the employer’s favor. However, the appellate court affirmed that Lantrip’s alleged actions did not amount to sexual harassment.
With regard to the retaliation claim, the appellate court found that the trial court prejudicially erred in excluding evidence of sexual harassment and excluding testimony of the psychological expert, and therefore reversed the judgment on those grounds.
Insight for Employers
In 2013, the FEHA was amended to clarify that “[s]exually harassing conduct need not be motivated by sexual desire.” Therefore, this case is a reminder that employees need to be vigilant about being aware of their supervisors’ interaction with employees, and hold regular harassment prevention training of their supervisors.
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