Lesbian Harasser Costs San Francisco

$75,000 award to woman harassed at Housing Authority upheld

In a ruling that illustrates important differences bet-ween federal and California law governing workplace sexual harassment, a California court of appeal has approved a $75,000 damages award against the San Francisco Housing Authority based on a female supervisor’s sexual harassment of a female employee.

The unanimous October 21 decision by a three-judge panel rejected the Authority’s argument that the trial judge should not have heard testimony about incidents in which the supervisor harassed male employees.

Deborah Drummer, a clerical employee at Alice Griffith, a San Francisco public housing project, filed the harassment claim after her employer failed to take effective steps to end continuing harassment by Karen Huggins. According to trial testimony, the harassment included frequent sexually charged remarks, unwanted gifts and touching, and an attempt by Huggins to get Drummer to kiss her. Drummer, who is straight and married, protested to Huggins’ supervisor, and was told her boss would be transferred. That did not happen and Drummer experienced significant emotional distress, manifesting itself in sleeplessness and other symptoms.

Evidence at the trial indicated that Huggins was an “equal opportunity harasser” who had engaged in similar conduct toward two male Housing Authority employees. Given that both men and women faced harassment, Drummer’s claim would have failed if brought under the federal Civil Rights Act. According to the U.S. Supreme Court, sexual harassment claims in federal court must be brought under the prohibition on “sex discrimination,” valid only if the plaintiff can show that she was harassed “because of her sex.”

By contrast, California has a specific statutory prohibition of sexual harassment in the workplace. The issue, therefore, was whether the plaintiff was subjected to harassment of a sexual nature, without getting into the sexual orientation of the harasser or the reason the harassment was inflicted on a particular victim.

The Housing Authority, on appeal, argued that the trial court erred because it “refused to consider, let alone render a finding on, Huggins’ sexual orientation.” Writing for the court, Judge Barbara J. R. Jones quoted from an appellate ruling from a decade before that dismissed that argument: “The focus of a cause of action brought pursuant to Government Code section 12940 is whether the victim has been subjected to sexual harassment, not what motivated the harasser.”

An important issue in the case was whether the Housing Authority should be held responsible for Huggins’ actions, and this turned to some extent on the Authority’s awareness of the supervisor’s past harassing conduct. This is why Drummer introduced evidence that Huggins had earlier harassed two other employees, both of whom had complained to management. The Authority argued that this past knowledge was not relevant, because knowing that Huggins had harassed men did not put it on notice that she might harass a woman.

Jones was not persuaded by this argument, finding that it was “based on a faulty premise. While appellants [the Housing Authority] state that people in our society are ‘presumed to have one sexual orientation,’ they have not cited any authority that supports that proposition. Indeed, in a cosmopolitan city such as San Francisco that embraces sexuality in its many and varied forms, it is demonstrably not true.”

The Housing Authority also said that the trial judge ignored the response it made to Drummer’s complaints in deciding its legal liability to her. That was just as well, Jones suggested, commenting that “the evidence showed the Housing Authority’s investigation of Drummer’s allegations was ineffectual at best. Although the Housing Authority concluded Huggins had acted inappropriately, it then promoted her to a higher position. Even the minor corrective action the Housing Authority did take was ineffectual. Huggins did not consider it to be discipline and she did not change her conduct toward her subordinates. We conclude these facts were sufficient to establish that the Housing Authority failed to take all reasonable steps necessary to prevent harassment.”

The decision underlines the deficiency in federal civil rights law, with its limited coverage of workplace sexual harassment—a deficiency echoed in the law of many states, including New York. When lesbian or gay employees experience sexual harassment, they frequently have no federal redress unless they can show that they were victimized because of their sex rather than their sexual orientation. Although a law that forbids sexual orientation discrimination addresses this problem, the lack of such a law at the federal level leaves the arsenal of statutory civil rights protection severely deficient for both gay and non-gay employees.

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