It’s a violation of California’s Fair Employment and Housing Act (FEHA) for a supervisor to use an employee’s sexuality as a vehicle for making work life miserable. That’s true even if it wasn’t motivated by sexual desire. Bullying someone through sexual threats is sexual harassment.
Recent case: Norman, a 70-year-old black janitor working at a high tech company, quit shortly after an incident involving the company’s chief operating officer, Thai, in the men’s room at work. Thai is Vietnamese.
Norman claimed that in front of seven other employees who also are Vietnamese, Thai asked him if he wanted to make $50. Apparently not suspecting a trap, Norman replied, “Yes, what do you want me to do?” Thai responded, “Pull your pants down, bend over and let me….” What followed was a vulgar sexual proposition. Thai and the other men in the restroom laughed.
As Thai left the restroom, he walked past Norman and said, “I am the COO of the company. Don’t you know you do what the COO tells you to do?”
Norman sued, alleging sexual harassment.
The company argued that Thai’s comment hadn’t been motivated by sexual desire and therefore didn’t technically constitute sexual harassment. The lower court agreed, but Norman appealed.
The appeals court reversed, noting that sexual harassment doesn’t have to involve sexual desire if the targeted individual’s sexuality is being used as a tool to otherwise harass. In this case, Norman’s heterosexuality was being used to intimidate him through threats of homosexual activity. The court also noted that the incident was severe, given Norman’s age and position with the company and because he had been surrounded by the COO and other employees who spoke in Vietnamese after Thai made his comments.
The court ruled that a reasonable person in Norman’s position would have found the situation harassing. (Felton v. Hi-Tech, D065666, Court of Appeal of California, 2015)
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