Wednesday, February 4, 2015
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Plaintiff Alleging Same-Sex Job Harassment Doesn’t Need To Establish Any Specific Motive—Court of Appeal
By a MetNews Staff Writer
An action for same-sex harassment at the workplace can be established without showing any particular motive, the Court of Appeal for this district held yesterday.
The opinion by Acting Presiding Justice Judith Ashmann-Gerst of Div. Two reverses a judgment in favor of defendant Southern California Edison, accused of failure to take reasonable steps to prevent the sexual harassment, and the two coworkers who allegedly committed the harassment.
Plaintiff Alejandro Madera Chavez will have another chance to attempt to prove at trial her claims under the Fair Employment and Housing Act. In other respects, the judgment was affirmed.
Ashmann-Gerst found error in an instruction given the jury by Los Angeles Superior Court Judge Victor E. Chavez:
“In a case alleging same-sex sexual harassment, Chavez must show that: [¶] (1) Each defendant was motivated by sexual desire; or [¶] (2) Each defendant was motivated by a general hostility toward men in the workplace; or [¶] (3) Each defendant was attempting to punish Chavez for failing to comport with gender stereotypes.”
The jurist wrote:
“Case law establishes that a cause of action for sex harassment may be stated by a member of the same gender as the harasser. The plaintiff need not prove that the same gender harasser was motivated by sexual desire, only that the plaintiff was subjected to harassment because of sex.”
She said the harassment of Chavez stemmed from his gender based on the nature of the conduct. One example she gave was that they would not “have called him a “… faggot” almost every day, if he had been a woman.”
Ashmann-Gerst said that “[i]n essence, the trial court added a requisite motivation element to Chavez’s sex harassment claim” an error which was not cured by other instructions.
The case, which was not certified for publication, is Chavez v. Southern California Edison Co., B253514.
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