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Homophobic Bullying of Heterosexual Employee Is Sexual Harassment

By June D. Bell  3/19/2014
 

Oil rig floorhands have a strenuous job. They help set up, dismantle and maintain the drilling rig and equipment, and they must keep the work area and tools in order.

When Max Taylor was hired as a floorhand by Nabors Drilling USA, in 2010, he knew his work would be physically demanding. He didn’t expect, though, that his managers would create what he called “the worst working environment I have ever been through in my life.” And he had no way of knowing that a new amendment to a California law would address exactly the type of on-the-job harassment that he was to suffer.

The new law sends a clear message to California companies that bullying and intimation using sexual put-downs and insults constitute sexual harassment. As of Jan. 1, 2014, employees who sue, claiming sexual harassment under the California Fair Employment and Housing Act (FEHA), do not need to prove that the harassment was motivated by sexual interest or desire.

The change merely codifies what HR professionals should have always been emphasizing in training—namely, that any form of harassment creates a hostile work environment and is completely unacceptable, said Beth De Lima, a San Francisco Bay-area human resources specialist and owner of HRM Consulting, which provides onsite sexual harassment awareness training. “This is common sense stuff. How could this happen to begin with? [Same-sex harassment] was never OK.”

HR practitioners should educate employees about the amended law and stress their organization’s zero-tolerance policy for sexually tinged bullying and intimidation. Had the law and supportive training been in effect when Taylor started his job, four years ago, he might have had a very different work experience.

Offensive Language

Taylor, a heterosexual, claimed that his supervisors made his job unbearable by constantly calling him “queer,” “homo” and “faggot.” He said one urinated on him from an elevated area on the oil rig. The other hung a lewd picture of Taylor in the employee restroom, humiliating him before his co-workers.

Three months after he started the job, Taylor complained about his managers’ behavior to the human resources department. One of his supervisors was terminated after an investigation. The other continued to work with Taylor but no longer harassed him. Taylor was fired two months later for infractions that included being late to work and to a mandatory safety meeting.

Taylor sued Nabors Drilling, claiming he was subjected to a hostile work environment due to sexual harassment. He accused the company of failing to prevent the harassment. He also claimed he was wrongfully fired and a victim of retaliation.

A jury awarded Taylor $160,000 for the hostile-environment sexual harassment claim. Nabors Drilling appealed, contending that Taylor failed to prove he was harassed because of his sex and/or perceived sexual orientation.

The company bolstered its argument by citing a 2011 California appeals court decision, Kelley v. The Conoco Companies, that had similar facts: A male supervisor repeatedly made a heterosexual male employee the victim of humiliating sexual insults. The appeals court had ruled against the victim, saying no sexual harassment had occurred because the supervisor had no sexual interest in his victim.

But the appeals court considering the verdict in Taylor’s case rejected that logic. It concluded in its Jan 13, 2014, decision that, in Taylor’s situation, “sex was used as a weapon to create a hostile work environment.”

Less than two weeks earlier, the California Fair Employment and Housing Act had been amended to broaden the definition of what constitutes sexual harassment. Effective Jan. 1, anyone who sues alleging sexual harassment under state law does not need to prove that the offensive conduct was motivated by sexual desire.

Educate and Update

The appeals court’s decision didn’t shock Margaret Keane, a San Francisco-based partner in DLA Piper’s employment practice. Courts are increasingly rejecting the “boys will be boys” attitude toward male-on-male harassment as they apply sexual harassment law to abusive treatment like the kind that Taylor endured. “There is not a separate provision of Title VII that applies to oil rigs,” Keane observed. “Employers need to recognize that ‘This is a tough place’ is not an acceptable defense.”

Policy manuals and procedures handbooks should be updated to reflect the change in the law, recommended Cheryl Orr, co-chair of the national labor employment group at Drinker Biddle and Reath in San Francisco. She advises businesses to have an adequate complaint protocol and a zero-tolerance policy for behavior that contributes to a hostile work environment. “It’s good business sense to work it into your training,” she said. “It can only help to get the word out.”

Keane suggests that companies with California employees review their policies and emphasize that lewd, insulting behavior directed toward anyone in the workplace is unacceptable. And anything of a sexual nature—be it signs, comments, gestures or jokes—is inappropriate on the job. “Employers shouldn’t rest on a rigid reading of what ‘because of sexual harassment’ means,” she cautioned.

Spelling out unacceptable behaviors creates a bright line for workers and reinforces a zero-tolerance stance. In fact, nothing prevents companies from going beyond the law, Keane noted: A business can institute its own code of conduct—such as banning crude behavior even if it’s not overtly sexual—with a scope that extends beyond sexual harassment to any form of bullying and intimidation.

Many people assume that sexual harassment applies only to offensive conduct, language or sexual advances in male-female interactions, so HR professionals should explain that harassment is not defined by whether the harasser has any sexual interest in his or her target. Even using gender-charged words, such as homophobic slurs (as in Taylor’s case), could be considered evidence of sexual harassment.

Providing training in this area of the law is critical because workers may have wildly different definitions of what constitutes harassment, depending on their age, sexual orientation, gender and background, said De Lima, who conducts in-person training workshops on sexual harassment.

Employees who feel harassed by a colleague’s behavior should be taught to firmly ask that person to stop the offensive behavior. Perpetrators should apologize even if they think they did nothing offensive, and they should cease the problematic behavior. Managers and supervisors should never turn a blind eye to complaints or retaliate against workers who report harassment, De Lima stressed.

As California Goes?
California is the only state in the country at this time to have broadened the definition of sexual harassment to include conduct that is not motivated by sexual desire. But it may not be alone for long. “This one does make a fair amount of common sense,” Orr said, adding that she wouldn’t be surprised if other states adopted the same definition. Keane, of DLA Piper, agrees. Appellate decisions are not binding, she noted, but are “indicative of where the courts are going.”

Federal courts have already ventured into this territory. Title VII of the Civil Rights Act of 1964 prohibits sexual harassment and clarifies that “harassing conduct need not be motivated by sexual desire.” California courts often look to Title VII for guidance on how to interpret the state’s Fair Housing and Employment Act.

The expanded definition in FEHA of what constitutes sexual harassment is a welcome addition to state law because it helps close a loophole and resolve a gray area, Orr said, adding with a laugh, “and that’s coming from an employers’ lawyer.”

June D. Bell is a San Francisco-based legal affairs reporter and regular contributor to SHRM. She can be reached at junebell@aol.com. 

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