It is a common misconception that sexual harassment in the workplace only occurs between men and women. In California, same-sex and opposite-sex sexual harassment are equally prohibited under the Fair Employment and Housing Act, Government Code §12940 et seq.
A recent case, Lewis v. City of Benicia, illustrates this point. The employee, Brian Lewis, was a heterosexual male who worked for the City of Benicia’s water treatment plant. In his lawsuit, Lewis alleged that his male supervisor sexually harassed him. The trial court ruled against Lewis, and in favor of the supervisor, finding that the supervisor’s conduct did not constitute sexual harassment.
The Court of Appeal reversed the trial court’s decision, and ruled in favor of Lewis, holding that a jury could find that the supervisor engaged in sexual harassment. The Court noted that an employee claiming sexual harassment must show he suffered discrimination because of sex. Employees can prove discrimination in any number of ways. Evidence of sexual harassment may exist where the harasser actually proposes sexual activity to the victim. Sexual harassment, however, does not need to be motivated by sexual desire. A jury or judge may find evidence of sexual harassment where the harasser’s words and action reflect hostility to the presence of women (or men) in the workplace. The court noted that “same-gender harassment consisting of sexual comments designed to humiliate the plaintiff and challenge his gender identity constitutes harassment because of sex…”
In this case, the court found Lewis was able to prove discrimination on the basis of sex by showing that his supervisor’s behavior towards him was motivated by sexual interest. Lewis’ supervisor gave him about 30 gifts during a seven-month period, including wine, shot glasses, clothes, and “tuxedo underwear” with ruffles and a bow tie; gifts which Lewis neither wanted nor used. The supervisor frequently paid for Lewis’ lunch as well. The supervisor also showed Lewis pornography on his computer during working hours and told him sexually explicit jokes that made Lewis uncomfortable. The supervisor told Lewis that he should visit his home, and asked “Why don’t you just kiss me?” The court found that a reasonable jury could find that the supervisor engaged in sexual harassment.
If you have been sexually harassed in the workplace, you may have a case against your employer. For more information about your rights, please call us at (619) 342-8000.