Sexual Orientation Harassment
FEHA prohibits harassment based on an individual's sexual orientation. Cal. Gov. Code § 12940(j). Sexual orientation is defined as "heterosexuality, homosexuality, and bisexuality." Cal. Gov. Code § 12926(q). To bring a claim for wrongful termination based on the employee's sexual orientation, an employee must show that:
- She was a member of [a particular ethnicity or ancestry],
- She was subjected to unwelcome ethnic harassment,
- The harassment was based on the plaintiff's sexual orientation,
- The harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment, and
- The [employer or entity] was liable for the harassment." Thompson v. City of Monrovia, (2010) 186 C4th 860, 876 (discussing racial harassment).
If the harassment complained of was perpetuated by a supervisor, then the employer of that supervisor is strictly liable for the harassment. However, if a mere coworker was responsible for the harassment, then FEHA requires, for the employer to be liable, the employer had to have known about the harassment or at least should have known about it; in which case, the employer would again be liable. State Dept. of Health Services v. Superior Court (Cal.,2003) 31 Cal.4th 1026, 1040-41.
While any termination based on orientation that gives rise to a hostile work environment would be prohibited, the California judiciary's stance on same-sex sexual harassment is currently unclear. One district in California has held that actionable same-sex harassment requires sincere sexual intentions. Kelley v. Conco Companies, 196 Cal.App.4th 191, 1 Dist., 2011. Another district, however, has held that the sexual harassment does not have to reflect actual sexual intentions in order for sexual harassment to have occurred. Singleton v. United States Gypsum Co., 45 Cal.Rptr.3d 597 (2006). Despite this ambiguity, same-sex sexual harassment will often still contribute to a showing of sexual orientation harassment.
After all, because FEHA also forbids sexual harassment at the workplace, many instances of sexual harassment may overlap with harassment motivated by the victim's sexual orientation. For instance, it is foreseeable that one worker might mock another for his or her sexual adventures with members of the same sex, which would fall under both categories, sexual harassment and sexual orientation harassment, as the comment reflects attention toward both the sexual activities of the employee as well as the gender of the partner in the activity. Either or both of these interpretations would presumably be viable reasons to bring a claim against the harasser if the harassment resulted in creating a hostile work environment.
Harassment due to an employee's sexual orientation is normally a separate cause of action from discrimination due to an employee's sexual orientation. However, harassment is actionable as "discrimination" if it is "so severe or pervasive as to alter the conditions of [the victim's] employment and create an abusive working environment." Clark County School Dist. v. Breeden, (2001) 532 US 268, 270. Thus, pervasive harassment about one's sexuality or sexual orientation may be enough for two separate claims, depending on the facts of the case.Contact Us
If you have experienced harassment at your workplace based on your sexual orientation or others' perception of it, contact the leading sexual orientation harassment lawyers in California at Kokozian Law Firm, APC. 323-857-5900. Ask about our free initial consultation.