Same-Sex Harassment and Retaliation Case Reinstated by Court of Appeals

In good news for victims of sex harassment and retaliation, and especially for same-sex victims, Lewis v. City of Benicia, 224 Cal.App.4th 1519 (2014) reinstated many of the claims against the City of Benicia and one of its supervisors.

First, the California Court of Appeals made clear that the trial court overstepped its bounds when it dismissed a sexual harassment claim. Following the U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the court held that same-sex harassment which included sexual comments intended to humiliate the plaintiff due to his gender identity constituted sexual harassment. It reversed the lower court’s ruling that the harassing conduct was not sufficiently “severe or pervasive” to constitute sexual harassment. It found that several months of a course of conduct of gifts and lunch purchases, sexual jokes, and pornographic computer images, was sufficient to bring a claim for sexual harassment.

On the other hand, the Court of Appeals dismissed a sexual harassment claim against another supervisor whose only conduct was showing computer pornography to a group of employees once or twice, and making an occasional joke.

Lewis also addressed a thorny evidentiary issue: in a retaliation claim, should a judge admit or exclude evidence of the underlying harassment where plaintiff’s claim is that he/she complained about the harassment and was retaliated against for making the complaint? In the Lewis case, the lower court held that the evidence of the harassment itself was not admissible. Instead, the court simply read a statement about the harassment. The Court of Appeals found this to be error. In other words, the jury needs to understand and be presented with the underlying conduct about which the plaintiff complains in order for the jury to rule on a retaliation complaint.

All this is good news for plaintiffs in sexual harassment or retaliation claims. And stay tuned, because the California Court of Appeals specifically did not address recent amendments to the Fair Employment and Housing Act which specifies that “…sexual harassment conduct need not be motivated by sexual desire.” Govt Code 12940(j)(4)(c). Certainly future cases interpreting this new provision should be helpful.

June 23, 2014 Jody LeWitter