Employment Law Alert: Employer Liability for Sexual Harassment in Absence of Sexual Motive Reaffirmed

Pursuant to the Court of Appeal’s holding in Taylor v. Nabors Drilling USA, LP, (B241914; filed January 13, 2014), an employer may be subjected to liability for hostile work environment/sexual harassment irrespective of whether the conduct was motivated by actual sexual desire or intent. In Taylor, Plaintiff sued his employer based on the comments and conduct of his supervisors targeting Plaintiff’s sexual orientation. According to Plaintiff, a heterosexual male, two male supervisors constantly subjected him to homophobic slurs and challenged his sexual orientation. Plaintiff alleged one of the supervisors also posted a photograph of the Plaintiff on a wall in the employee restroom with a target around Plaintiff’s mouth and comment that Plaintiff argued indicated an act of oral sex. The other supervisor was alleged to have aroused himself in front of the Plaintiff and urinated on him. After filing a complaint with the Human Resources Department, one of offending supervisors was terminated. Three months after Plaintiff’s complaint to Human Resources, Plaintiff was terminated for performance issues.

Plaintiff subsequently filed a Complaint for: (1) hostile work environment sexual harassment, (2) failure to prevent sexual harassment, (3) unlawful retaliation and (4) wrongful retaliation and termination in violation of public policy. Finding the Plaintiff’s termination was justified, the jury returned a verdict in favor of Plaintiff on his cause of action for hostile work environment sexual harassment and awarded $160,000 in damages and $680,520 in attorneys’ fees. On appeal, the employer argued there was insufficient evidence to show that Plaintiff “was harassed because of his sex and/or perceived sexual orientation.” The Court of Appeal disagreed.

In reaching its decision, the Court of Appeal analyzed competing holdings in Singleton v. United States Gypsum Company (2006) 140 Cal.App.4th 1547, and Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, as to whether sexual motive is a necessary element for a Plaintiff to establish sexual harassment. Both cases involved the alleged harassment of a heterosexual male by male supervisors through use of homophobic slurs and other actions targeting the Plaintiffs’ sexual orientation. Singleton, an opinion issued by Division Eight of the Second Appellate District, held there “is no requirement that the motive behind the sexual harassment must be sexual in nature.” The Singleton court opined that sexual harassment occurs when sex is used as a weapon to create a hostile work environment. In Kelley, the First District (Division Five) Appellate Court held that the Plaintiff failed to establish an expression of actual sexual desire or intent or that the alleged discriminatory conduct resulted from Plaintiff’s actual or perceived sexual orientation.

The Taylor Court noted several Title VII decisions which hold that a Plaintiff is not required to prove sexual desire as a motivating factor to establish a claim for sexual harassment. Citing the fact that California courts often seek guidance from Title VII opinions when interpreting the FEHA, the Court approved of Singleton’s holding that “a heterosexual male is subjected to harassment because of sex under the FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.” As more Courts weigh in on this issue, the California Supreme Court will likely have to resolve the split in authority.

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January 14, 2014