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California appeals rules against city in sexual harassment case

San Francisco’s District Court of Appeal has ruled for a plaintiff who is suing the city of Benicia for sexual harassment and retaliation. The court reversed a jury’s decision against the plaintiff as well as a pre-trial ruling by the judge that the sexual harassment evidence be thrown out.

The suit alleges that the 46-year-old plaintiff suffered harassment and retaliation by supervisors at the Benicia water treatment plant where he worked. Allegedly, the harassment began in 2008 and continued for over a year. The plaintiff says the plant supervisor showed him pornography on city-owned computers and gave him unsolicited personal gifts.

According to the suit, when the plaintiff reported his supervisor’s behavior, he was wrongly accused of stealing, harassment and poor performance and removed from his position. He fought that action and was reinstated.

However, he says the new acting supervisor engaged in similar behavior. That supervisor admitted in an internal investigation that he had shared “adult sexual humor” with employees using city computers. The first supervisor claimed that his own actions were “mere banter among male co-workers.” Both supervisors were allowed to retire rather than face demotion or termination.

The appellate justices ruled that the judge should not have excluded the sexual harassment evidence against the first supervisor. That judge determined that the alleged actions were not “so severe or pervasive that they created a hostile work environment.” The appellate judges, however, ruled that “a reasonable jury” could conclude that the supervisor was “pursuing a relationship” with the plaintiff. They ruled that the second supervisor’s alleged actions, however, did not rise to the level of sexual harassment.

The city attorney said that her office and the city council will now determine whether to take the case to the California Supreme Court, go back to trial or settle with the plaintiff. The trial jury had found that although the plaintiff proved retaliation, he did not show that he was harmed. However, they did not hear the sexual harassment evidence.

According to California’s Fair Employment and Housing Act, “Sexually harassing conduct need not be motivated by sexual desire.” That means that an employee or supervisor can be held legally responsible for inappropriate behavior even if it is not directed at the romantic or sexual pursuit of a worker. Therefore, regardless of the motive behind the behavior, employees who are subjected to harassment or discrimination have a right to pursue legal action.

Source: Contra Costa Times, “Court reverses verdict in Benicia sexual-harassment case” Tony Burchyns, Times-Herald, Mar. 30, 2014

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