In Lewis v. City of Benicia, ___ Cal.App.4th ___ (March 26, 2014), the California Court of Appeal (First Appellate District, Division One) reversed the order of the Solano County Superior Court (Judge Bowers) granting defendant’s motions for summary judgment and judgment on the pleadings on plaintiff’s sexual harassment claim and reversed the jury trial’s verdict and judgment on plaintiff’s retaliation claim.
Plaintiff, a heterosexual man, sued his former employer and two former supervisors, asserting claims under California’s Fair Employment and Housing Act (FEHA) for same-sex harassment and (against defendant employer only) for retaliation. The trial court granted summary judgment in favor of the individual defendants, and granted judgment on the pleadings for defendant employer. The retaliation claim then went to the jury, who found in defendant employer’s favor. Plaintiff appealed.
The appellate court affirmed judgment on behalf of one of the supervisors but reversed it as to the other supervisor and defendant employer. The court also reversed judgment for defendant employer on the retaliation claim.
On the same-sex harassment claims, the court determined that “the evidence in the present case allows an inference [that one of the supervisor’s] conduct toward [plaintiff] constituted discrimination because of sex.” First, the court 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.” Yet, the court determined that it need not determine which standard is correct “because the evidence in the present case allows an inference [the supervisor] was motivated by sexual interest.” The court pointed out that some of the supervisor’s alleged acts – such as showing plaintiff pornographic images and telling “risqué” jokes – had sexual connotations. The court also concluded that the supervisor’s conduct could allow an inference that “he was pursuing a romantic or sexual relationship” with plaintiff. These actions included giving “30 different items as gifts,” including “’tuxedo underwear,’ with ruffles and a bow tie,” and frequently buying him lunch. Finally, on one occasion, the supervisor joked to plaintiff “why don’t you just kiss me[?]” The court then concluded that, because of the supervisor’s potential liability for sexual harassment, the defendant employer also could be liable for sexual harassment, and it therefore reversed the grant of judgment on the pleadings in its favor.
On the retaliation claim, the court concluded that the trial court erred by not allowing evidence of sexual harassment the testimony of a psychological expert to go to the jury. The court determined that evidence of sexual conduct was relevant to his retaliation claim and was probative as to whether plaintiff engaged in protected activity because it tended to show whether plaintiff reasonably believed that the conduct he opposed was discriminatory. The evidence was also relevant to whether defendant employer’s retaliatory acts were motivated by plaintiff’s complaints and relevant to whether the acts caused emotional distress. The probative value of this evidence outweighed any prejudice to defendant employer. Finally, the court concluded that the trial court abused its discretion by excluding the expert witness’s testimony since it was based on a trivial misunderstanding of the trial court’s order.