MAX Taylor started work for Nabors Drilling as a “floorhand” on an oil rig in June 2010. Joe Mason and Jaime Mendez were Taylor’s supervisors. Several times a day, Mason called Taylor a “queer,” “homo,” and “gay porn star.” Taylor 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 Taylor’s girlfriend, who had gone shopping with Mason’s wife. Mason also posted a photograph of Taylor inside the employees’ restroom inappropriately altered to suggest a sexual act. When confronted by Taylor, Mason heaped more abuse on him. Taylor was disturbed, and extremely humiliated by Mason’s actions.
Jaime Mendez also sexually harassed Taylor by offensively or inappropriately touching Taylor or asking Taylor to perform a sexual act. Taylor had told Mendez several times not to touch him. Mendez testified that he did not consider Taylor to be gay.
Taylor testified that it was the “worst working environment” he ever had in his life and that he was treated inhumanely. Taylor’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, Taylor 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 Taylor, 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, Taylor was fired.
Taylor 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 Taylor for hostile work environment sexual harassment. Employer appealed, stating that there was not enough evidence to establish that Taylor “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, Taylor’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 Taylor’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 Taylor. More specifically, the supervisors’ attacks on Taylor’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.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.