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Shelton v. City of Manhattan Beach9/28/2004
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The Fair Employment and Housing Act prohibits employment discrimination including harassment based on sexual orientation. (Gov. Code, ยง 12940, subd. (j)(1).) To recover for sexual orientation harassment in violation of the Fair Employment and Housing Act on a hostile work environment theory, plaintiff must show that: he belongs to a protected group; he was subject to unwelcome sexual orientation harassment; the harassment complained of was based on sexual orientation; the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive working environment; and respondeat superior. (Cf. Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122-1123 [gender harassment]; Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 [sex harassment]; see also Etter v. Veriflo Corp. (1998) 67 Cal.App.4th 457, 467 [severe or pervasive].) Plaintiff alleges as against all of the defendants that he was subjected to sexual orientation harassment in the form of a hostile work environment. On appeal, defendants argue, as the trial court found, that plaintiff did not subjectively perceive his work environment to be hostile or abusive, and the conduct in question was not objectively severe or pervasive. We find triable issues of material fact remain as to these issues.
a. plaintiff's subjective perception
The Supreme Court discussed the requirement that a plaintiff subjectively perceive his or her work environment to be hostile or abusive in the lead opinion of Chief Justice Ronald M. George in Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 130: "`For sexual [orientation] harassment to be actionable, it must be sufficiently severe or pervasive "to alter the conditions of [the victim's] employment and create an abusive working environment." [Citation.]' (Meritor Savings Bank v. Vinson [(1986)] 477 U.S. 57, 67 .) . . . `Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond [the Fair Employment and Housing Act's] purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no [Fair Employment and Housing Act] violation.' . . . ` . . . onduct must be extreme to amount to a change in the terms and conditions of employment . . . .' (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 788 .)" (Italics added.)
Defendants contend, as the trial court found, that given plaintiff's discovery admissions there is no triable issue of material fact as to whether plaintiff subjectively perceived his work environment to be abusive. We disagree. We find plaintiff's deposition testimony was equivocal and, as a result, the rule of law on which defendants rely is inapplicable.
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