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JUDICIAL UPDATES Employee Can Pursue Same-Sex Harassment Claim Because the Unwelcome Conduct by Male Co-Workers Challenged His Identity as a Heterosexual Male The California Court of Appeal determined in Singleton v. United States Gypsum Company that a male employee had presented enough evidence of harassment based on sex to be able to proceed to a trial to have a jury determine the merits of his claims. John Singleton (“Employee”), a maintenance mechanic employed by United States Gypsum Company (“Employer”), filed an action alleging sex discrimination and harassment in violation of the Fair Employment & Housing Act. Employee contended that two of his co-workers would say things that challenged him as a man, such as pointing out that he was wearing tight jeans, and accusing him of giving his male supervisor oral sex or engaging in other homosexual activity. The trial court granted Employer’s motion for summary judgment by holding that, as a matter of law, none of the harassing conduct was sex discrimination or sexual harassment. Specifically, the court found that there was no triable issue of fact that the hostility or abuse was related to Employee’s gender or sexual orientation. The appellate court reversed the trial court’s judgment. First, the appellate court held that Employee presented more than adequate evidence that his co-workers’ comments were unwelcome, and that the conduct was sufficiently severe or pervasive to alter Employee’s conditions of employment and create an abusive work environment. The crux of the case was whether the harassment was “because of sex.” As the California Supreme Court recently explained in another case, the disparate treatment of an employee on the basis of sex – not the mere discussion of sex or use of vulgar language – is the essence of a sexual harassment claim. The harassment was “because of sex” because it attacked Employee’s identity as a heterosexual male. Sexual harassment occurs when sex is used as a weapon to create a hostile work environment.
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