Same-Sex Sexual Harassment Claims: Just as Powerful as Opposite-sex Harassment Claims

The right to work in an environment free from sexual or gender based harassment is a federal and California civil right. Sexual harassment includes the the unwanted and unwelcomed visual, verbal or physical conduct that is sex-based or of a sexual nature or requests for sexual favors. If an employee is sexually harassed by his or her supervisor, an employer is liable for those damages incurred by the employee as a result of the sexual harassment. But is an employer potentially still liable for sexual harassment that occurs between an employee and supervisor of the same sex?

Sexual Harassment Attorney – Same Sex Harassment?

In recent a case from this year, Lewis v. City of Bencia, Brian Lewis, a paid intern and heterosexual man, sued his former employer, the City of Bencia, and his former supervisors for sexual harassment and retaliation. Lewis’ supervisor showed him pornography on the office computer and consistently told him inappropriate sexual jokes. The supervisor also bought Lewis lunch on numerous occasions and gave him numerous gifts while Lewis was employed with the City. One such gift was tuxedo underwear. Lewis claimed that the supervisor had asked whether he can visit Lewis’ home and once asked Lewis why he has not kissed him yet. On another occasion, a different supervisor also showed Lewis pornography on the office computer.

The trial court dismissed Lewis’ claims. However, the appellate court disagreed. The court held that under both Title VII and FEHA, sexual harassment can occur between members of the same gender as long as the plaintiff can establish the harassment amounted to discrimination because of sex. The court also stated that the harassment does not need to be motivated by sexual desire. In addition, the court of appeal reasoned that a jury could reasonably find that Lewis’ supervisor did engage in sexual advances, conduct, or comments and thus, the claim should be allowed to proceed to trial.

Factors of Same-Sex Sexual Harassment

Sexual harassment between the same sexes must be pervasive, or evident on its face. To determine whether an employer or its agents’ conduct is sufficiently pervasive to create a hostile work environment, the court will look at the following factors: the frequency of the conduct, whether the conduct is physically threatening, and whether the conduct unreasonably interferes with an employee’s work performance. In this case, the court of appeal found that the frequency and regularity of the supervisor’s conduct was sufficiently pervasive. The court also stated how Lewis was not comfortable with his supervisor’s actions and had told him to stop.

Sexual harassment claims between the same sexes are just as potent as sexual harassment claims between the opposite-sex employees. At the end of the day, this is good news for employees who have been sexually harassed in the workplace because there is a low level of proof required to show actions based on sexual interest especially after case and state law which reiterates that sexual desire is not needed as an element of sexual harassment.