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Supervisor's Conduct Supported Same-Sex Harassment Claim, California Court Rules

  • April 3, 2014

Finding an intern had produced sufficient evidence for a reasonable jury to conclude his supervisor engaged in a pervasive pattern of harassing conduct “because of sex,” including numerous gifts, frequent lunch purchases, along with sexual jokes and displays of pornographic computer images, the California Court of Appeal has allowed his harassment suit to proceed, reversing a lower court’s summary judgment against the plaintiff. Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014). The Court further found the trial court erred in excluding evidence of the alleged harassment in the intern’s retaliation claim against the City of Benicia and ordered a retrial on the retaliation claim.


Brian Lewis, a heterosexual man, worked at the City of Benicia’s water treatment plant, first as a volunteer (beginning in March 2008), then as a paid intern for a 60-day internship (from July to October 2008), and finally, for a second stint as a volunteer (from January to May 2009). During his tenure, Lewis reported mainly to Steve Hickman. Lewis asserted Hickman sexually harassed him by showing him sexually explicit images on an office computer, telling him “risqué” jokes, giving him approximately 30 gifts (including “tuxedo underwear” with ruffles and a bow tie, hats, t-shirts, wine, shot glasses, and backpacks), frequently buying him lunch, and asking him for a kiss and to visit Hickman’s home. Lewis also alleged that, after he complained to the City about the harassment and participated in the investigation of Hickman, the City retaliated against him by terminating his paid internship, prohibiting him from continuing to work at the water treatment plant, even on an unpaid basis, and falsely accusing him of workplace misconduct. 

Lewis sued Hickman and the City for alleged sexual harassment under the California’s Fair Employment and Housing Act (“FEHA”). He also sued the City for employment retaliation. The trial court granted summary judgment in favor of Hickman and the City on the sexual harassment claims. Following a jury trial on the retaliation claim, the jury returned a verdict in favor of the City. Lewis appealed.

Applicable Law

To establish a sexual harassment claim under the FEHA, the employee must prove that: 

(1) he or she was subjected to unwelcome sexual advances, conduct or comments; 

(2) the harassment was based on sex; and 

(3) the harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment. 

Under 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.” 

Harassment “because of sex” can be proven or inferred more easily in male-female sexual harassment situations involving “explicit or implicit proposals of sexual activity.” However, “[t]he same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual.” Further, harassing conduct “need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.” For example, if a female victim is harassed in “such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace,” then the trier of fact reasonably can find discrimination. A same-sex harassment plaintiff also may offer direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace.

To establish a retaliation claim under FEHA, the employee must prove he or she engaged in protected activity, the employer took an adverse employment action against him or her, the protected activity was a motivating reason for the adverse action, and the employer’s conduct caused harm to the plaintiff. 

Claims Can Proceed

Lewis argued the trial court erred in ruling Hickman’s alleged conduct was not harassment “because of sex.” The appellate court agreed. Although the Court declined to decide whether a same-gender sexual harassment claim based on sexual propositions or comments was viable in the absence of evidence of evidence of sexual interest, the evidence presented allowed an inference Hickman was motivated by sexual interest. It said Hickman’s comments, jokes, and gifts permitted a jury to infer he was interested in pursuing a romantic or sexual relationship with Lewis; thus, the conduct was “because of sex.”

Lewis also argued the trial court erred in ruling Hickman’s conduct was not “severe or pervasive” enough to support his sexual harassment claim. Hickman countered the incidents were isolated and Lewis never objected to them. The Court again sided with Lewis. It determined that based on the course of alleged conduct, “a reasonable jury could conclude Hickman engaged in a pervasive pattern of harassing conduct.” Accordingly, the Court concluded that triable issues of fact existed, precluding summary judgment on the sexual harassment claim. Because the Court reversed summary judgment in favor of Hickman on the sexual harassment claim, it also reversed the summary judgment in favor of the City on that claim.

With respect to the retaliation claim, Lewis argued the trial court erred in excluding evidence of the alleged sexual harassment and expert testimony regarding the emotional harm he suffered as a result of the alleged harassment. The Court agreed. It stated that “if Lewis had been permitted to present evidence of Hickman’s alleged sexually harassing conduct, the jury would have had a fuller understanding of the context in which Lewis’s protected activity and City’s adverse actions occurred.” The Court continued, “The jury also could have assessed whether City’s retaliatory acts, when considered as part of an alleged larger course of harassing or improper conduct toward Lewis, caused him harm, such as emotional distress.” The Court found the cumulative effect of the errors was prejudicial to Lewis and ordered a retrial of his retaliation claim.


Employers need to enforce strong policies prohibiting harassment and to train employees regarding appropriate conduct in the workplace. In addition, employers should respond promptly to harassment complaints, investigate them thoroughly, and document its response. Moreover, care should be taken when considering adverse actions against individuals who previously complained of harassment to ensure any action is well-supported by documented legitimate business reasons.

For additional information regarding this case or employee training, please contact the Jackson Lewis attorney with whom you regularly work with any questions about this and other workplace developments.

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