The Lawletter Vol 39 No 5
There is a long line of cases discussing the principles that govern claims of sex discrimination in the form of sexual harassment, including, more recently, cases addressing same-gender harassment. In Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the Court explained that the critical issue in same-gender cases, as in all other sex discrimination cases, is whether "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. at 80. Thus, the Court found that sexual harassment between members of the same gender is actionable if it amounts to discrimination because of sex. The Court noted that proposals for sexual activity by a homosexual harasser would allow the inference of discrimination because of sex, but explained that harassing conduct can also consist of conduct showing sex-specific hostility, rather than sexual desire.
In a recent California case, the court addressed the issue of what evidentiary showing is needed under that state's law to support an inference that same-gender harassment constitutes discrimination on the basis of sex, noting that there was disagreement among the state's appellate courts. Lewis v. City of Benicia, 169 Cal. Rptr. 3d 794, 806 (Ct. App. 2014). While some courts had concluded that sexual comments designed to humiliate and challenge the plaintiff's gender identity would be sufficient without showing that the conduct had been motivated by sexual interest, at least one court had required a showing of genuine sexual interest. In Lewis, the court found it unnecessary to decide the question, because the evidence before it supported an inference that the harasser was, in fact, motivated by sexual interest.
The court's decision not to determine the issue is particularly interesting, given that it took note of the fact that a recent legislative amendment specifically states that harassment because of sex "need not be motivated by sexual desire," id. at 803 n.8 (internal quotation marks omitted). The court, however, stated that it did not need to address the "effect of the amendment," id., because even if evidence of sexual desire were necessary, there were fact issues on that question. Perhaps more to the point, there did not appear to be any evidence in support of the alternative evidentiary route, that is, a showing of same-sex-specific hostility.