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Sexual Harassment Need Not Be

Sexual Harassment Need Not Be

The public’s concept of sexual harassment in the workplace typically involves a particular storyline wherein an employee is the target of unwanted sexual advances from a supervisor or another employee.  Generally, the targeted employee feels they are trapped and that any forceful rejection of the sexual advances may lead to them being terminated or demoted.  But, what happens when the harassment is by an employee of the same sex who does not harbor any sexual feelings towards the victim.  Is this sexual harassment?  Or, is this simply another case of inactionable bullying?

A prima facie case of “hostile work environment” sexual harassment requires that the plaintiff establish: (1) she was subjected to verbal or physical contact of a sexual nature, (2) the conduct was unwelcome, and (3) the abusive conduct was sufficiently severe or pervasive so as to alter the conditions of her employment thus creating an abusive working environment.  Sheffield v. Los Angeles County(2003) 109 Cal. App. 4th 153, 161.
Prior to 2013, courts had been divided as to the meaning of “sexual nature” or, in the words of the FEHA, “because of sex.”  Cal Gov Code § 12940(j).  Some courts had ruled that a plaintiff needed to show evidence of a genuine sexual interest, while others had allowed cases to move forward without such evidence.  In 2013, the California Legislature resolved this issue by amending the FEHA to indicate that “[s]exually harassing conduct need not be motivated by sexual desire.”  Cal Gov Code § 12940(j)(4)©.

A court recently had the opportunity to interpret this new language in Lewis v. City of Benicia.  In this case, the plaintiff, a heterosexual man who worked at the City of Benicia’s water treatment plant, was the recipient of unwanted sexual advances and other forms of sexual harassment from a male supervisor.  The plaintiff alleged that he had been retaliated against after complaining of this harassing behavior.  The trial court ruled that the supervisor’s conduct was not harassment “because of sex.”  The appellate court reversed.  Unfortunately, although the court discussed the recent amendment to the FEHA, it did not offer a holding on whether a sexual harassment claim was viable in the absence of a showing of sexual interest.  Rather, it held that the evidence before it allowed the inference that the supervisor was in fact motivated by sexual desire.

Although case law on this issue is still developing, the impact of the amendment to the FEHA is still profound, as it signifies a shift away from the traditional narrative of workplace sexual harassment.  In light of this, employers and employees must be aware of this evolving narrative in order to address sexual harassment in all its forms.

Sean Haddad is a business and employment attorney at Appell Shapiro, LLP in Los Angeles, California.

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