Category: Sexual Harassment

Sexual Harassment Need Not be Motivated by Desire, Further Explored

hand-stop-300x300We previously blogged about this topic here, but we explore the topic further below.

The California Court of Appeals recently clarified that under the Fair Employment and Housing Act (FEHA), sexual harassment attacks do not have to be motivated by sexual desire or intent.  In the case of MAX TAYLOR, Plaintiff and Respondent, v. NABORS DRILLING USA, LP, Defendant and Appellant, Taylor was hired in June 2010 as a “floorhand” on an oil rig. Taylor, a heterosexual, alleged he was harassed by his supervisors who called him “queer,” “fagot [sic],” “homo,” and “gay porn star” and subjected him to other humiliating and harassing conduct.  After trial concluded, the jury awarded Taylor $160,000 in damages, including $10,000 for past loss of earnings and $150,000 in emotional distress.  The jury also awarded $680,520 in attorney’s fees.

Nabors appealed the jury verdict and argued Taylor failed to prove he was harassed “because of his sex and/or perceived sexual orientation” and that the harassment was motivated by actual sexual desire or intent by the harassers. The Court of Appeal affirmed the jury verdict on the ground that “the focus of a [sexual harassment] case is whether the victim has been subjected to sexual harassment, not what motivated the harasser.” (Cal. Gov’t Code § 12940(j)(4)(C)).   The appellate court further reasoned “a heterosexual male is subjected to harassment because of sex under the FEHA when attacks on his heterosexual identity are used as a tool of harassment in the workplace, irrespective of whether the attacks are motivated by sexual desire or interest.  Pursuant to Title VII of the Civil Rights Act of 1964 (Title VII) (42 U.S.C. § 2000e et seq.), which prohibits sexual harassment, ‘harassing conduct need not be motivated by sexual desire.’” Furthermore, that “California courts have recognized that a sexual motive or interest is not required for sexual harassment under the FEHA. (See Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 [plaintiff “need not show that the conduct was motivated by sexual desire”]; Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1418 [“The focus of a cause of action brought pursuant to Government Code section 12940 is whether the victim has been subjected to sexual harassment, not what motivated the harasser”].)

The Court of Appeal affirmed the jury award in its entirety, except that it reduced Taylor’s past loss of earnings damages because the jury determined he was lawfully terminated for poor job performance.  Therefore, the judgment was modified to reduce Taylor’s damages from $160,000 to $150,000 (reduction of $10,000 in past loss of earnings).  The award of attorneys’ fees of $680,520 was affirmed.

Los Angeles Councilman Accused of Sexual Harassment

Huizar facing the mediaSan Diego isn’t the only city that needs to “keep it classy” in the words of anchorman, Ron Burgundy. The city of Los Angeles is facing accusations of sexual harassment, namely toward Councilman Jose Huizar.

A judge set a November 10th trial date for the case that was filed by former aide, Francine Godoy. Godoy, who began working for Councilman Huizar in 2006, alleges that the politician repeatedly approached her for “sexual favors.” When she refused, Godoy claims Huizar executed a systematic campaign of retaliation and harassment against her. Godoy’s attorney, Michael Eisenberg, is asserting that the plaintiff has more than 20 witnesses to call to the stand.

Huizar, however, is claiming a different story. He alleges that he and Godoy were in a mutually consensual relationship. The councilman has declared Godoy’s claims as “false and malicious.”

Godoy began working for Huizar seven years ago, earning approximately $47,000 a year. Upon her departure, Godoy was making in excess of $132,000 a year.

Huizar is also currently named in a personal injury lawsuit. A $185,000 settlement is in the works for a former police officer Huizar rear-ended in a car accident in 2012. Huizar was driving a city vehicle, therefore, the council is currently involved with settlement negotiations.

You Stay Classy, San Diego

 

Throughout the end of 2013, the news was ablaze with the sexual indiscretions of San Diego mayor, Bob Filner. Now, almost three months into 2014, Mayor Filner is once more in the spotlight…by paying the cost.

The city of San Diego is paying out its second settlement for the former mayor’s indiscretions. Peggy Shannon, a 67 year old great-grandmother, filed a formal suit against the former mayor for sexual harassment last August, alleging that Filner had made pervasive comments toward her and even forcibly kissed her. He would seek her out at during her part-time shifts and consistently ask that she go out on dates with him. She grew more and more nervous and worried at Filner’s bold behavior, with some encounters ending in tears.

At one point, Filner’s serial sexual harassing tendencies led to the female staff confronting him about his behavior. They tried to put a stop to his inappropriate ways. Donna Frye, a former Filner supporter, took further action, by organizing a press conference during which she coined Filner as being a “serial sexual harasser.” The press conference got the ball rolling on a larger scale and by the following week, 18 women stepped forward against Filner.

Filner has since agreed to resign and never to take public office again. He has also been criminally charged with one count of false imprisonment and one count of sexual battery.

The First Steps to File a Lawsuit

You find yourself bullied and harassed at your work place. You’re called names based on your ethnicity, or your religious beliefs and practices are brought into question, or you experience unwanted touching and sexual advances. You report these incidents to your employer. You are fired. Now what?

Many people find themselves at a loss when their livelihood is taken from them and are frequently confused as to where to turn. In these instances, one must know that time is precious. If you wish to file suit or take action for termination/firing, bullying, or harassment, the first step is to ensure your time is preserved.

For claims based on federal law that safeguards against discrimination, an employee or former employee has 180 days from the time the unlawful action took place to file with the federal entity, the Equal Employment Opportunity Commission (EEOC). On the state level and for claims violating state law based on discrimination, a person has up to 1 year to file a claim with the California Department of Fair Employment and Housing (DFEH). These time windows are called “statutes of limitations.” If your statute of limitation expires, then the claims do also.

Therefore, to ensure your precious time is in fact preserved, contact an attorney who can determine which entity needs to be involved. It’s beneficial to contact an attorney sooner rather than later as to preserve your claims.

Sexual Harassment NEED NOT be Motivated by Desire

In light of Kelley v. The Conco Companies, (“Kelley”) 196 Cal. App. 4th 191, 126 legislators enacted Senate Bill 292 amending the Fair Employment and Housing Act to explicitly state that sexual desire need not be a motivating factor in order for a plaintiff to prevail on a claim of harassment.

In Kelley a male plaintiff complained of harassment directed at him by another male coworker did not prevail on his claim for sexual harassment because he failed to prove that his harasser’s conduct was motivated by sexual desire. In response to this unfavorable verdict, legislators enacted and passed SB 292 which amended California Government Code § 12940 to now read, “Sexually harassing conduct need not be motivated by sexual desire.”

One inferred effect of this change is that it a same-sex harasser does not have to be a homosexual or bisexual to be liable for harassing a same-sex victim.