Max started work for Nabors Drilling as a “floorhand” on an oil rig in June 2010. Mason and Mendez were Max's supervisors. Several times a day, Mason called Max a “queer,” “homo,” and “gay porn star.” Max protested to Mason that he was not a homosexual and that he had a girlfriend. Mason just laughed at him and repeated his taunts. Mason knew Max's girlfriend, who had gone shopping with Mason's wife. Mason also posted a photograph of Max inside the employees' restroom inappropriately altered to suggest a sexual act. When confronted by Max, Mason heaped more abuse on him. Max was disturbed and extremely humiliated by Mason's actions.
Mendez also sexually harassed Max by offensively or inappropriately touching Max or asking Max to perform a sexual act. Max had told Mendez several times not to touch him. Mendez testified that he did not consider Max to be gay.
Max testified that it was the “worst working environment” he ever had in his life and that he was treated inhumanely. Max's girlfriend testified that every day he would come home from work “very emotional” and “upset” because of “all the derogatory statements that he was told at work.”
In September 2010, Max contacted the employer's human resources department and complained about the harassment. After his complaint, Mason did not return to the rig. Mendez continued to work with Max, but he stopped his sexual harassment. About a week later, the employer suspended Mason for two weeks and began an investigation of the harassment claim. At the end of the investigation, Mason was fired. On December 19, 2010, Max was fired.
Max filed a complaint against the employer alleging (1) hostile work environment sexual harassment, (2) failure to prevent sexual harassment, (3) unlawful retaliation, and (4) wrongful retaliation and termination in violation of public policy. After trial, the jury returned a special verdict in favor of Max for hostile work environment sexual harassment. Employer appealed, stating that there was not enough evidence to establish that Max “was harassed because of his sex and/or perceived sexual orientation.”
The Court of Appeal upheld the trial court, which found that “there was significant nonverbal communication that certainly underlined and focused on the sexual nature of the comments being made so that it did not appear . . . that these were mere derogatory comments, but were specifically sexual in nature.”
Unlike the usual sexual harassment case where the victim receives unwelcome sexual advances from another motivated by sexual desire, Max's supervisors were not making sexual advances towards him. However, the supervisors were targeting his sexual identity as a heterosexual male and attacked that identity with their abusive comments.
Given that the supervisors had targeted Max's identity as a heterosexual male, it followed that they would treat women ‘differently,' i.e., not attack them for the same reason. Therefore, the harassment was ‘because of sex.' In this instance, sex was used as a weapon to create a hostile work environment for Max. More specifically, the supervisors' attacks on Max's identity as a heterosexual male became tools of harassment.
The court concluded that discrimination based on sex does not require that the harassing conduct be motivated by sexual desire. The sexually harassing comments or conduct may be motivated by anger or rage and sex is used as a weapon to create a hostile work environment.
The court also noted that California law was amended in 2013 to provide that sexually harassing conduct need not be motivated by sexual desire and sexual harassment does not require proof of sexual desire towards the victim.
How is the employer liable for the sexual harassment of its employees? The law imposes two standards of employer liability for sexual harassment, depending on whether the person engaging in the harassment is the victim's supervisor or a nonsupervisory co-employee. The employer is liable for harassment by a nonsupervisory employee only if the employer (a) knew or should have known of the harassing conduct and (b) failed to stop it. On the other hand, employers are strictly liable for harassment by a supervisor.