Workplace Verbal Attacks on Male Employee’s Heterosexual Identity Deemed Harassment Under FEHA

Sexual Harassment Does Not Have to Be Founded on Sexual Desire

A relatively recent change in California employment law has created new rules for the workplace when it comes to behavior that rises to the level of sexual harassment. In the case of Taylor v. Nabors Drilling USA, LP, 222 Cal. App 4th 1228 (2014), the California Court of Appeal ruled that a person who made comments relating to the homosexual orientation of another employee who was, in fact, heterosexual could be guilty of harassment, even if the comments were not motivated by sexual interest or desire. This case was decided under the California Fair Employment and Housing Act (FEHA). The holding ultimately was that the offensive attacks based on homosexual identity still could qualify as harassment, even when the employee was heterosexual and the attacks were not motivated by sexual desire because the harassment was based on gender.

The Factual Basis of the Case

The case was brought by a former employee, Max Taylor, who was working as a floor hand on an oil drilling rig for Nabors Drilling. From the time that his employment commenced in 2008, there were harassing comments made to and about him based on his gender and sexual orientation – both Taylor’s supervisor and more senior employees engaged in this behavior. Although it was known that Taylor was a heterosexual male, other workers on the rig repeatedly made derogatory comments about him based on a homosexual orientation. The slurs used against him included “faggot,” “homo,” and “queer.” The other workers also posted photos of Taylor in the bathrooms with sexual comments written on the pictures.

After approximately a year and a half of this harassment, Taylor reported the harassment to human resources. Taylor’s supervisor was removed from the rig and subsequently terminated after an investigation. The report did lead to a cessation of the harassing behavior by the other employees, but it had pervaded for a long period of time. Nabors Drilling terminated Taylor soon after the resolution of the harassment based on performance issues, including excessive absences, late arrivals, and a conflict with another supervisor. After Taylor was terminated due to performance issues, he brought a legal action against Nabors Drilling based on sexual harassment due to the hostile work environment. The jury in the initial trial found that Taylor was sexually harassed and awarded him $160,000 in noneconomic and economic damages, in addition to more than $680,000 in attorneys’ fees. Nabors Drilling appealed the decision.

The Appeal

Pursuant to the provisions of FEHA, sexual harassment may be found if a person in subjected to unwanted comments or acts based on “race, color, religion, sex, gender, gender identity, gender expression, sexual orientation …” Government Code, §§ 12900 et seq. In order to prevail in a case where the plaintiff alleges that a hostile work environment was created due to sexual harassment, it is necessary to demonstrate the following:

• The comments, acts, or advances were not welcome;
• The behavior or conduct that is alleged to be sexual harassment was, in fact, based on sex; and
• The behavior was of such a nature that it created a hostile or abusive work environment. This means that the behavior must have been so pervasive or severe that it altered the work environment and the conditions under which the plaintiff had accepted the employment.

In bringing the appeal of the jury verdict, Nabors Drilling argued that the behavior was not motivated by sex because Taylor was known to be heterosexual and the comments referring to him by derogatory terms for a homosexual were not made because the individuals making the comments had any sexual desire for Taylor. The Court of Appeal disagreed with this argument, finding that it was sufficient to determine that Taylor’s gender was the basis, or played a large role, in the harassment, which was sexual in nature. Although the Court of Appeal affirmed the underlying verdict and the trial court’s denial of Nabors Drilling’s motion for a judgment notwithstanding the verdict (JNOV), it did reverse the award of $10,000 for past economic damages. The denial of the economic damages was based on the fact that Taylor’s employment was terminated for legitimate reasons.

There has been a recent clarification to the language of FEHA clearly stating that “[s]exually harassing conduct need not be motivated by sexual desire.” California Government Code § 12940(j)(4)(C). The Court of Appeal cited this change in issuing its decision.

Moving Forward after Taylor v. Nabors Drilling

This is one of those cases that has a significant impact on how employers must react to allegations of sexual harassment in the workplace. It is important that workplace training on how to avoid sexual harassment includes clear instructions that the harassment does not need to be motivated by sexual desire or motivation. The underlying behavior may be motivated by an aggressive, bullying, or hazing mentality, but is carried out through comments, actions, or advances that are based on gender or another protected classification. In order to avoid costly litigation, employers also must have a well-publicized “zero tolerance” policy for this type of behavior, where the response is quick and effective to eliminate the harassing behavior or conduct. In addition to encouraging employees to report harassing conduct, the employer also must have procedures in place to ensure that harassing behavior does not become pervasive.

The success of Taylor in bringing this action against a large drilling company likely will open the door for other cases of this nature.

If you have been the subject of workplace harassment, contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside, and Los Angeles. Call (949) 375-4734.