Sexual Harassment Need Not Be Motivated by Desire, Further Explored

We 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 “floor and” 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 the 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 a 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.