California Truck Driver's Same-Sex Harassment Claim Fails

A truck driver who alleged that his supervisors sexually harassed him could not go forward with his claim of a hostile work environment where the evidence showed that while the supervisors may have treated men and women differently, the disparate treatment did not result in terms and conditions of work that were more adverse to men than women, a California appeals court ruled.

The driver worked for a large trucking firm. He claimed that one of his supervisors punched him on the shoulder a few times and hit him on the buttocks with a clipboard. When the worker asked the supervisor if he would have hit his buttocks if he were a woman, the supervisor said "no." The driver also claimed that a second supervisor used coarse language around men, while refraining from using such language around women.

The driver filed a lawsuit against the trucking company, alleging a hostile work environment based on sexual harassment, among other claims. The trial court dismissed the sexual-harassment claim before trial, and the driver appealed.

Hostile Work Environment

To establish a hostile work environment sexual-harassment claim, the plaintiff must show unwelcome conduct because of sex or gender that was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment, the court first noted. The harassment must be both objectively and subjectively offensive, meaning that a reasonable person would find the conduct hostile or abusive and the victim did in fact perceive it to be so.

Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including:

• The frequency of the discriminatory conduct.
• The conduct's severity.
• Whether the conduct is physically threatening or humiliating, or a mere offensive utterance.
• Whether the conduct unreasonably interferes with an employee's work performance.

A plaintiff can demonstrate same-sex harassment by showing direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace, or by showing harassment in such sex-specific and derogatory terms as to make it clear that the harasser was motivated by general hostility to men, the court explained.

Even if the employee here showed that coarse and vulgar language was used around men more than around women, and that the supervisor would not hit a woman's buttocks with a clipboard, he did not show that the conduct and vulgar language created disadvantageous terms and conditions of employment for men, the court said. Treating women more politely than men is not an adverse employment action. Genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex do not create actionable discrimination, the court said.

In addition, to prevail on a hostile work environment claim, an employee must show that the harassing conduct was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex. Sporadic and isolated actions do not establish a claim for harassment.

The plaintiff also must show that a reasonable employee would have perceived the conduct and comments as materially altering the terms and conditions of employment or as seriously affecting the psychological well-being of a reasonable employee.

The employee here did not produce evidence that he was severely or pervasively harassed because of his gender, the court said. The unwanted touching and comments were offensive, but no reasonable person would find that they materially altered the conditions of his employment, created a work environment that qualified as hostile or abusive due to his gender, or unreasonably interfered with his work performance or psychological well-being, the court concluded, affirming the trial court's dismissal of the sexual-harassment claim.

Lee v. YRC Inc., Calif. Ct. App., No. D076729 (Feb. 17, 2021).

Professional Pointer: The court's inquiry in any hostile work environment sexual-harassment case will focus on whether the allegedly offensive conduct was severe and pervasive enough to alter the employee's working conditions.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md.