In Singleton v. United States Gypsum Co., 2006 Daily Journal D.A.R. 8758, Cal.App. 2 Dist., July 3, 2006, a California Court of Appeal permitted an employee to proceed on his claim of same-gender sexual harassment and discrimination based on his co-workers’ repeated use of crude and offensive behavior that targeted his sexual identity.
Facts
Employee, John Singleton, was terminated from his job as a maintenance mechanic at United States Gypsum (USG) in December 2002, purportedly for making threatening remarks. He filed a lawsuit against USG, alleging claims of sexual harassment and discrimination, failure to prevent discrimination and harassment, and unlawful retaliation. Singleton presented evidence that for several months prior to his termination two male USG co-workers repeatedly engaged in behavior designed to belittle and humiliate him "as a man,” including threatening to force him to have or perform oral or anal sex with them or their supervisor; calling him a nickname that Singleton recognized as the name of a homosexual character in a recent movie; taunting him with comments and gestures in front of other employees; generally making his life a “living hell”; and adversely affecting his work performance. Though Singleton complained verbally and in writing about the behavior, his supervisors downplayed his concerns and essentially did nothing.
The trial court found that, even though Singleton had presented “substantial evidence” of his co-workers’ hostile and abusive conduct, their behavior could not be considered sexual harassment because it was not related to his gender or sexual orientation and was not so extreme as to create an environment that a reasonable person would find created a hostile work environment. Because Singleton could not prove the basic requirement that the harassment was sexual, the trial court granted summary judgment to USG on all of his claims.
Decision
Under California’s Fair Employment and Housing Act (FEHA), a hostile work environment” sexual harassment claim requires an employee to show he or she was subjected to sexual conduct, advances, or comments that were (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. In this case, the primary issue was whether Singleton had presented sufficient evidence to show that his co-workers’ conduct was “because of sex,” because there was “more than adequate evidence” that his co-workers’ conduct was unwelcome and had created an abusive work environment.
Proving that conduct was “because of sex” means a plaintiff must show that the conduct was not “merely tinged with offensive sexual connotations” but that it actually constituted “discrimination” – i.e., that the plaintiff was disparately treated because of his or her sex, the Court of Appeal said. The disparate treatment here was evidenced from the fact that Singleton routinely felt he was being challenged “as a man,” with comments that the Court agreed were such that would “challenge” any heterosexual male “as a man.” Given that the co-workers’ consistently and continually targeted Singleton’s sexual identity, it was “axiomatic” that they would treat women differently and that their harassment was “because of sex.” The fact that the coworkers’ motivation may not have been sexual desire but more likely was anger was irrelevant. Rather, sexual harassment occurs when, “as alleged in this case, sex is used as a weapon to create a hostile work environment.”
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