Sexual Orientation Harassment Is Sexual Harassment Under the EFAA

Seyfarth Synopsis: A California Court of Appeal has held that sexual orientation harassment constitutes “sexual harassment” under California’s Fair Employment and Housing Act (FEHA). Consequently, claims for sexual orientation harassment are exempt from arbitration under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Decloedt v. Radnet Management, Inc., et al.

The Facts

Trevor Joseph Decloedt worked for Radnet Management, Inc. (Radnet). At the outset of Decloedt’s employment, he signed an arbitration agreement whereby he agreed to arbitrate all employment-related claims.

Decloedt alleged that, over the course of several months, a coworker and a supervisor repeatedly harassed him because of his sexual orientation. The harassment included telling Decloedt that homosexuality was a “sin,” threatening to kill Decloedt, and pulling Decloedt’s hair with such force that he fled to the restroom. Decloedt alleged that the harassment drove him to contemplate suicide, and that despite reporting the conduct to his supervisor and human resources, no corrective action was taken. Decloedt was subsequently terminated.

Decloedt filed a complaint asserting various claims, including hostile work environment and sexual harassment under FEHA (both of which were based on Decloedt’s sexual orientation), along with wrongful termination and related claims. Radnet filed a motion to compel Decloedt’s claims to arbitration pursuant to the terms of his arbitration agreement.

The Trial Court Decision

The trial court denied Radnet’s motion to compel arbitration, concluding that Decloedt had adequately alleged a claim of sexual harassment under FEHA, thereby triggering the EFAA’s exemption from arbitration for cases “relating to [a] sexual harassment dispute.” Radnet appealed.

The Appellate Court Decision

The Court of Appeal affirmed the trial court decision, holding that harassment on the basis of sexual orientation is a form of sexual harassment under FEHA.

FEHA prohibits harassment on myriad bases, including “sex” and “sexual orientation.” And, the statute specifically states that “‘harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” FEHA is silent as to whether sexual orientation harassment is sexual harassment.

The Court of Appeal relied (in part) on the U.S. Supreme Court’s decision in Bostock v. Clayton County, where the Supreme Court held that discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex under Title VII. The Court of Appeal then applied this logic to FEHA’s “because of sex” language. The Court of Appeal reasoned that because California courts routinely rely on federal court decisions relating to Title VII to interpret analogous FEHA provisions, harassment because of an employee’s sexual orientation is harassment because of sex under FEHA.

The Court of Appeal also found support for its decision in Quilala v. Securitas Security Services USA, Inc., where the plaintiff alleged that supervisors and coworkers mocked his perceived sexual orientation. The Quilala court held these allegations stated a plausible claim of sexual harassment under FEHA; i.e., sexual orientation harassment is a form of sexual harassment.

Radnet argued that FEHA’s separate listing of “sexual orientation” and “sex” as protected characteristics means that sexual orientation harassment is a distinct category. However, the Court of Appeal rejected this argument, explaining that the word “includes” in the statutory definition of “harassment because of sex” is a term of enlargement, not limitation.

What Decloedt Means for Employers

Decloedt expands the application of the EFAA in California by concluding that sexual orientation harassment claims under FEHA are in fact “sexual harassment disputes” under the EFAA. In light of the Decloedt decision, it seems likely that claims for gender identity and gender expression harassment will also be treated by California’s courts as sexual harassment claims under FEHA, and thereby prove exempt from arbitration under the FAA.

As the California courts expand the EFAA’s scope, employers should consider modifications to their arbitration agreements to preserve arbitration as a viable option as to claims that are not covered by the EFAA, even when covered claims are asserted.