By Josh Rodine and Leo Li

We take a break from our Onboarding Series to inform you of a new case with implications for anyone with employees in California.  If you are reading this, that’s probably you. 

On January 13, 2014, in Taylor v. Nabors Drilling USA, LP, the California Court of Appeal held that, under the California Fair Employment and Housing Act (FEHA), a heterosexual male is subjected to harassment because of sex when workplace verbal attacks on his heterosexual identity are used as a tool of harassment, regardless of whether the attacks are motivated by sexual desire.

The Facts

The plaintiff, Max Taylor, worked for Nabors Drilling as a “floorhand” on an oil rig.  His co-workers subjected him to homophobic epithets such as “queer,” “faggot,” “homo,” and “gay porn star,” even though they knew that he was not homosexual. Taylor sued his former employer after he was discharged for performance issues.

The jury found that Taylor had been sexually harassed and awarded him $160,000 in damages. Nabors Drilling appealed.

The Appellate Court Decision

The FEHA prohibits harassment because of an employee’s “sex, gender, gender identify, gender expression . . . or sexual orientation.”  A plaintiff claiming hostile work environment sexual harassment must show he was subject to sexual advances, conduct, or comments that were (1) unwelcome; (2) because of sex; and (3) sufficiently severe or pervasive to alter the conditions of his or her employment and create an abusive work environment.

Nabors Drilling argued that Taylor had failed to prove the verbal harassment was “because of sex,” in that the harassing supervisors knew Taylor was not homosexual and had no sexual desire or interest in Taylor.  

The Court of Appeal disagreed.  It acknowledged that a plaintiff claiming sexual harassment must show that the offensive conduct was not merely tinged with offensive sexual connotations, but actually was harassment.  But all that was needed here, the Court found, was evidence that gender was a “substantial factor” in the harassment.  Thus, because the plaintiff was not required to prove that sexual desire or interest motivated the harassment, the sexual epithets were sufficient to satisfy the “because of sex” element.

What Taylor Means For Employers

The Taylor court analyzed the FEHA as it existed at the time of the trial.  The ruling is not surprising, as the sexual nature of offensive conduct typically is only one method of proving that harassment was gender-based, as opposed to being the exclusive method.  Any doubt regarding the matter was removed as of January 1, 2014, with a FEHA amendment stating: “Sexually harassing conduct need not be motivated by sexual desire.”  We reported on this Legislative amendment here. 

Workplace Solution

In light of the expanding view as to what constitutes same and opposite sex sexual harassment, it is more important than ever for employers to take a proactive role in training employees—emphasizing that sexual harassment need not involve sexual motive or interest, but can appear also in various forms of bullying, e.g., making homophobic remarks. 

Furthermore, because a sexual harassment plaintiff must still show that the conduct alleged is sufficiently severe or pervasive to alter the conditions of employment, employers can minimize liability through adequate complaint protocols, informing employees of a zero tolerance policy, and encouraging them to report any inappropriate workplace behaviors.  

Next week:  Stay tuned for our return to the series on Onboarding of new employees. You won’t want to miss it. 

Edited by Julie Yap