Sexual harassment definition changed 

Larry T. from the Excelsior asks this week’s question:

Q: “I work at an airport baggage handling operation in the Bay Area. It’s a tough job and there is a lot of trash talk that goes around. One of my bosses tells me I have a pretty mouth and makes sexual comments to me all the time about how he wants to “do me” and is always trying to grab me when I go by. Everyone laughs at me. I’m straight and he is married to a woman. I tell him to stop, but he just keeps on day after day because he knows it bothers me. I don’t even want to go to work anymore. I complained to my rep, but she said that it wasn’t sexual harassment because we are both guys. What are my rights?”

A: Sexual harassment used to be defined as either quid pro quo sexual harassment or hostile-environment harassment. Quid pro quo harassment is characterized as being transactional in nature such as you give me sexual favors and I will give you a promotion, better hours, etc. Hostile-environment sexual harassment has the following characteristics: Being subject to conduct on the basis of sex that is unwanted, the conduct is so severe or pervasive it interferes with the employee’s work environment, a similarly situated employee would consider the environment to be sexually charged or hostile and someone in the line of authority above the employee is engaging in the conduct or the employer knew, or should have known of the conduct, and didn’t take action to stop it.

For conduct to be considered unlawful sexual harassment, it must be severe or pervasive. Generally, a single comment or stray remarks will not arise to the level of pervasiveness but a single act, such as a sexual assault, may be considered severe enough that it may be considered sufficient enough to constitute unlawful harassment.

Under the law an employer is supposed to not only take steps to prevent discrimination and harassment, if they know or suspect unlawful harassment is occurring they have an obligation to take prompt and sufficient remedial measures to put a stop to it.

For years, those of us who do this kind of civil-rights work understood that sexual harassment was based on sexually charged conduct whether it was between those of the same or opposite sex. I have handled many cases of this type and it has always been my position that sexual attraction was irrelevant. The proper inquiry was whether the conduct was sexual and unwanted. My firm has handled dozens of cases wherein the harassment was demeaning and emasculating where sexual interest was not a motivating factor.

In 2011, there was a case with many of the same characteristics as yours where a male supervisor, not sexually interested in his male subordinate, made highly offensive sexual comments, such as he wanted to sodomize him, rape him and that he belonged on his knees, etc.

Unbelievably, a California appeals court ruled that the conduct, although vile, threatening and offensive, was not unlawful sexual harassment because the victim could not prove that the harasser was acting with a “genuine sexual interest.” This was a major step backward applying outdated concepts of what makes sex-based conduct unlawful.

This decision prompted the California Employment Lawyer’s Association, a group of plaintiffs’ attorneys who practice employment law, to approach Democratic state Sen. Ellen Corbett, who represents the East Bay and parts of Santa Clara County, to remedy this injustice. In 2013, Corbett introduced Senate Bill 292, designed to clarify the law and overturn the 2011 decision. The law passed and became effective Jan. 1. It states that, “with respect to an employment-related sexual harassment claim made under the Fair Employment and Housing Act, sexually harassing conduct need not be motivated by sexual desire.”

So Larry, whether or not your boss actually has any sexual attraction or interest in you is irrelevant. If his conduct is sexually charged and severe or pervasive, which it appears to be, then it is legally actionable. Report it to your human resources department and contact a trial lawyer to assist you in handling your case.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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