Thursday, July 9, 2026
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Court of Appeal:
On-Job Anti-Gay Abuse Is Sexual Harassment Under FEHA
Justices Declare Suit, Even if Arbitration Would Ordinarily Be Compelled Under FAA, Is Exempt
By a MetNews Staff Writer
An employee’s claim of abusive on-the-job treatment based on his homosexuality constitutes an allegation of “sexual harassment,” Div. One of this district’s Court of Appeal has held, declaring that this renders his causes of action exempt from arbitration, under a federal statute.
The opinion, filed June 26 and certified for publication on Tuesday, affirms an order by Los Angeles Superior Court Judge Virginia C. Keeny denying a motion by Radnet Management, Inc. and others to compel arbitration of a lawsuit brought by Trevor Joseph Decloedt. One of his causes of action is for sexual harassment in violation of California’s Fair Employment and Housing Act (“FEHA”).
Justice Helen I. Bendix authored the opinion, which sets forth:
“[A]n employer’s harassment of an employee on the basis of the latter’s sexual orientation or sex is actionable under FEHA. Whether harassment because of sexual orientation constitutes sexual harassment for the purposes of FEHA is the question before us.”
Answering the question, she declared:
“[W]e hold that harassment on the basis of sexual orientation amounts to sexual harassment under FEHA.”
That conclusion supports Keeny’s ruling that the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 applies. Under that statute, disputes that would otherwise be arbitrable under the Federal Arbitration Act are exempted where they involve a claim of sexual harassment.
Supreme Court Decision
Bendix pointed to the U.S. Supreme Court’s 2020 decision in Bostock v. Clayton County. There, it was held that sexual-orientation discrimination is barred under Title VII of the Civil Rights Act of 1964 which provides it to be “unlawful...for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual...because of such individual’s race, color, religion, sex, or national origin.”
Justice Neil Gorsuch, writing for the majority, said:
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
He went on to say that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Reliance on Bostock
Bendix wrote:
“We agree with Bostock’s holding that discriminating against an employee because of his or her homosexuality is discrimination on the basis of sex. That logic applies with equal force when determining whether an employer who has harassed an employee because of his or her homosexuality has engaged in harassment because of the employee’s sex. For that reason, we conclude sexual orientation harassment is a form of harassment because of sex under FEHA.”
The appellants argued:
“Plaintiff ignores the plain text of FEHA. FEHA defines harassment ‘because of sex’ to include ‘sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.’…Sexual orientation is conspicuously absent from that definition. Instead, FEHA lists sexual orientation as a separate, distinct category of prohibited harassment….Plaintiff’s attempt to collapse these two categories contradicts the plain language of the statute.”
The word “include” in a statute, Bendix said, does not preclude application of the provision to circumstances not expressly set forth. She opined that the list of contexts in which the term “because of sex” applies was intended to remove “any doubt that harassment based on gender, pregnancy, childbirth, and medical conditions relating to pregnancy and childbirth constitute harassment because of sex, even though that form of harassment may not be motivated by sexual desire.”
She added that “by omitting other characteristics inextricably intertwined with an employee’s sex, the Legislature intended for those omitted characteristics to be excluded from” the “proscription of harassment because of sex.”
The justice recited allegations of abusive conduct and drew the conclusion that the plaintiff adequately alleged that he had been subjected “to severe or pervasive harassment because of his homosexuality.”
The case is Decloedt v. Radnet Management, Inc., B343963.
Radnet was represented by staff attorneys Lindsay M. Holloman and M. Alejandra Jimenez along with Jill Louise Ripke of the downtown Los Angeles firm of Squire Patton Boggs. Carney R. Shegerian, Mahru Madjidi and Melineh Jingozian of the West Los Angeles firm of Shegerian & Associates acted for Decloedt.
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