Employment Rights Attorneys: Application of Employment Law in California to Gay, Lesbian, Bisexual, Transgender Employees

California employees enjoy a myriad of protections while carrying out their roles as guardians and protectors of their employers' interests. This paper seeks to explore the protections that currently exist under California employment law for employees who identify themselves as having the sexual orientation of gay, lesbian, or bisexual, or who identify themselves with the sexual identity of transsexual or transgendered. My belief is that the same employment protections that exist for all employees also exist for the gay, lesbian, bisexual, and transgender (“glbt”) community. I will try to outline all the protections that persons of various sexual orientation and sexual identity have in California work places, as well as to explore the myths that commonly prevent the glbt community from exercising its rights under already existing California law.

In general, California's glbt employees may assert claims under tort, contract, and statutory (i.e., anti-discrimination) provisions. Over the past years, the California courts have emphasized that the employment relationship is fundamentally contractual. Therefore, California's rules for contract enforcement apply equally to employment contracts. The two most basic contract doctrines that apply to California employees are: breach of contract and breach of the implied covenant of good faith and fair dealing.

California and federal statutes protect employees from discrimination based on sex (gender), sexual orientation (and/or perceived sexual orientation), and disability discrimination. While other forms of statutory employment protections exist, the areas of sex discrimination, sexual orientation discrimination, and disability discrimination are probably the most important areas of statutory protection afforded the glbt community.

The employment relationship in California is fundamentally contractual. Foley v. Interactive Data Corp., (1988) 47 Cal. 3d. 654, 696. Remarkably, those contract concepts govern both contract formation, performance, and termination. Many employees mistakenly believe that it is easy for employers to classify them as “at will” employees, and once classified as such, they essentially have no contract rights in the work place, and in fact, can be dismissed from their jobs at any time. This belief is an erroneous one, sponsored and supported by California employers and their counsel, and leads many not to enforce their contractual agreements.

Contract Formation: California recognizes that an employment contract is presumed to be formed as an at will contract, unless the parties agree expressly or impliedly otherwise. Labor Code Sec. 2922. In fact, virtually all non-unionized employees begin employment as at will employees. At will status means that the parties have no guaranteed, or fixed period during which their employment relationship will exist, and either party may terminate the relationship at their will, i.e., at any time and for any reason (not unlawful).

At will status means the parties have defined the manner in which their employment contract will end. At will status does not mean, as many attorneys (and judges) erroneously assume, that the parties have no contract. In fact, at will status presumes the existence of an employment contract, otherwise, how can he parties have an agreement regarding how that contract will end? See Labor Code Sec. 2922.

Most persons logically recognize probationary employees as at will employees. We all understand that if the employer is displeased with an employee for any reason during the probationary period, then the probationary period is the defined time period during which the employer can terminate the relationship for any reason. In essence, at will status is akin to probationary status.

At the time of contract formation, and for some time afterwards, virtually all non-union employment contracts exist as at will contracts. At will contracted employees are protected from tortious wrongful discharge, just as employees who can be terminated only for specific reasons, or only for good cause. Many, if not most, at will employees have the ability to achieve “good cause” status at some point during employment, as will be seen from the discussion below.

Contract Performance - Breach of Contract: In December 1995, the California Supreme Court confirmed that employees could enforce employment agreements pertaining to agreements in the work place dealing with topics other than discharge. Scott v. PG&E (1995) 11 Cal.4th 454. In Scott the plaintiffs argued that the company's demotion policies and procedures were enforceable policies. The defendant argued that the court should enforce only those employment agreements that dealt with discharge, and that the court should not enforce agreements pertaining to policies short of discharge. PG&E asserted that enforcing all the other miscellaneous agreements made in the course of employment would wreak havoc on the courts, since employees could bring virtually every type of employment dispute into the courts for adjudication, and make the courts in California essentially an enforcer of personnel policies.

The Supreme Court in Scott held that employees could enforce all agreements (including agreements governing when and how demotion would occur), even if those agreements did not deal with the subject of employment discharge. The Court noted that if employers did not want to have certain provisions in their employment agreements, employers could simply chose not to make those contract provisions part of their express or implied employment contracts. Id.

Some employment handbooks do have a written provision in the early parts of the handbook saying words to the effect that the handbook does not constitute a contract of employment. However, it is Hornbook contract law that a party can convert an express, written contract into an implied written contract by saying the following: “Although this Handbook is not your employment contract, we will keep our agreements stated in this Handbook, and you are required to keep the requirements identified for employees in the Handbook.” Courts customarily find that handbooks can provide the basis for the implied employment agreement between the parties, and such handbooks should be examined in detail to uncover what the employer's duties are during the ongoing employment relationship. Kelecheva v. Multivision Cable TV Corp. (1993) 18 Cal.App.4th 521.

Contract Termination - Breach of Contract: An employer may terminate a contract at will, unless the employer has agreed to “otherwise restrict” its ability to terminate for cause or has agreed to terminate only for “good cause” reasons. Pugh v. Sees Candies (1981) 116 Cal. App. 3d. 311 appeal after remand (1988) 203 Cal. App.3d 743. The exact language of the court is as follows:

an allegation of breach of written Termination Guidelines” implying self-imposed limitations on the employer's power to discharge at will may be sufficient to state a cause of action for breach of an employment contract. Foley v. Interactive Data, (1988) 47 Cal. 3d 654, 681, citing Pugh supra.

There is an abundance of case law describing how an employee might have converted her “at will” termination status to that of “good cause.” Several cases make clear that in determining whether an employer must have good cause before discharging an employee is an analysis that examines the totality of circumstances in the employment relationship. Pugh v. See's Candies, Inc. (1981) 116 Cal.App.3d 311 appeal after remand (1988) 203 Cal.App.3d 743. Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654.

duration of employment;

commendations, promotions, and salary increases the employer provided;

personnel practices, handbooks, and policies regarding discharge;

oral assurances the employer gave to the employee regarding continued employment;

good performance evaluations and lack of criticism of the employee's work;

the custom and practice of the industry itself. Id.

The fact that an employer has failed to follow its own practices, policies, and procedures for handling termination, may itself lead to a claim that the employer failed to adhere to his employment agreement. Foley infra at 681-682. Wood v. Loyola Marymount Univ. (1990) 218 Cal.App.3d 661.

The case law describing the phrase, “good cause” has recently changed, so that an employer in California no longer needs actual, provable good cause to terminate employees who are protected from arbitrary discharge by the “good cause” standard. The California Supreme Court, in a 5 - 2 decision, held earlier in 1998 that for employees protected by a contract requiring termination only for 'good cause,” an employer need not be able to demonstrate the good cause reason existed, but only that the employer had a good faith belief that a good cause reason existed. The employer must have conducted a reasonable, good faith investigation into the facts in order to have the necessary good faith belief justifying that discharge. Cotran v. Rollins Huddig Hall Int'l (1998) 17 Cal.4th 93.

In Cotran the employer discharged the plaintiff after investigating the claims of two female employees who he had sexually harassed. The employer never obtained a statement from Mr. Cotran about the specific allegations leveled by the two females, and the employer never investigated what Cotran identified at trial were the real reasons the two women complained about him. At trial the jury apparently believed Mr. Cotran's version, namely that each woman was not a victim of sexual harassment, but instead was angry at Mr. Cotran for having been sexually involved with the other woman.

The Supreme Court held that Rollins Huddig Hall was not obligated to “prove” Mr. Cotran had engaged in sexual harassment, but only that the company had conducted a reasonable and good faith investigation into the matter before reaching its belief that he had engaged in unlawful harassment. The company had interviewed approximately twenty witnesses, assigned a human resource professional to conduct the investigation, and had confronted Mr. Cotran with the basic allegations before firing him. Despite these facts, the Supreme Court declined to find that these actions met the reasonableness test, and instead, remanded the case back to the Superior Court.

In short, termination of the employment relationship at will is circumscribed both by the restriction placed on the discharge process in the employer's own policies and by the employer's agreement to terminate only for “good cause.” An employee who believes her employer violated policies leading up to discharge, or who had an expectation the employer would only discharge for good cause based on written or oral promises in the work place, should consult counsel to determine whether the policies, and process of employment, would contractually lead to an assumption that at will contract termination no longer existed.

Covenant of Good Faith and Fair Dealing: Employers in California must act in good faith towards their employees, making sure they do not engaged in conduct that denies employment benefits to the employee or frustrates the employee's ability to participate in the employment contract. Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 549; BAJI 10.51; Restatement (Second) of Contracts Sec. 205.

Employer violated its personnel policies or applied them unreasonably in terminating employee. Rulon-Miller v. IBM Corp., (1984) 162 Cal App. 3d 241, 247.

Employee terminated without good cause and employer did not follow its own express procedures for resolving employee disputes. Cleary v. American Airlines, Inc., (1980) 111 Cal. App. 3d 443, Gray v. Superior Court, (1986) 181 Cal. 3d 813.

Employer granted employee medical leave under policy that permitted extension, refused to even consider extension when she needed it, then terminated her. Walker v. Blue Cross, (1992) 4 Cal. App. 4th 985.

Employer terminated employee on the basis of false accusations without investigation. See Koehrer v. Superior Court, (1992) 181 Cal. App. 3d 1155.

Employer terminated employee for insisting on privacy rights and refusing to submit to urinalysis. Luck v. Southern Pac. Transp. Co. (1990) 218 Cal.App.3d. 1.

Setting unrealistic time frames for accomplishing work.

Requiring that work be performed without providing enough staff, training, information, or other resources to accomplish the work.

Leaving an employee out of meetings, off-site conferences, or streams of communications that would help the employee do her job.

Allowing weeks, and even months, to pass while an employee has been performing in a specific fashion, and then criticizing and/or disciplining her without advance notice that her performance had been unacceptable all along.

Informing an employee she has a specific time to perform a task, then truncating the time without a good reason.

Telling an employee that “all” her jobs are priority jobs.

Telling an employee to work with a “good attitude” without identifying specific performance that shows such a “good attitude.”

Disciplining an employee for conduct not specifically identified or suggested on the employer's list of proscribed activities.

Promising an investigation into allegations of misconduct, and then failing to complete an adequate investigation (but see discussion of Cotran above).

Telling an employee that she is responsible for how someone else “feels” without regard to the employee's own specific conduct.

Telling an employee to observe the conflict of interest policy, without identifying those conflicts for which the employer has concerns.

Punishing the victim of an assault/battery under a policy that punishes everyone “involved in” a fight.

As should be obvious, the acts in violation of the good faith covenant are not unique to glbt employees. However, glbt employees should be particularly aware of these actions in bad faith, as they may often constitute a cover up (“pretext”) for other unlawful forms of discrimination.

The Covenant of Good Faith In the Context of the At Will Discharge Contract: There is some disagreement among the courts as to whether an employee subject to the at will discharge rule has protections from arbitrary and bad faith conduct in the work place. Logically, if two persons have a contract (e.g., for the sale of peaches) which allows either side to terminate the agreement at any time and for any reason, neither party would still be allowed to act in bad faith during the existence of the contract itself. For example, the peach seller could not continually ship the peaches in crates he knew would fall apart during shipment, thus destroying substantial amounts of the peaches. Use of bad crates, poor shipping methods, inebriated loading personnel, and under ripe peaches are all obvious examples of bad faith conduct during the conduct of the contract.

At least one California court, however, has taken the illogical step of holding that since an employer may terminate at will contract at any time, none of the employer's conduct may be described as “bad faith” since the employer had the ability to terminate the contract instead of engaging in the conduct described as “bad.” Schneider v. TRW, Inc., 938 F.2d 986, 991 (9th Cir. 1991); See also, Halvorsen v. Aramark et al., (1998) 65 Cal. App. 4th 1383.

Generally: Through judicial construction, rather than by statute, California prohibits the termination of employees in violation of public policy. Such tortious wrongful terminations have become the major exception carved from the “at will” contract termination rule.

An employer violates the rule of tortious wrongful termination, when it discharges (or constructively discharges) an employee in violation of some public policy, “tethered” in either a statute or Constitution. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083. Recently, the California Supreme Court held that an employee need not state the specific statute or Constitutional provision to which his conduct, or objection, is tied. Instead, an employee need only assert that his claims are based in a public policy that is eventually “tethered” to some fundamental public policy found in the Constitution or a statute. Green v. Ralee engineering Company (1998) 78 Cal. Rptr. 16, 98 DAR 9379. In Ralee the employee succeeded in pursuing his cause of action based on airline safety principles, even though he could not point to a specific federal or state statute which he alleged his employer was violating.

Under California's tortious wrongful termination doctrine, discharge for refusing to perform an illegal act constitutes a wrongful termination. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167. An employee discharged for asserting rights protected by a specific statute is also the victim of tortious wrongful termination. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137. An employee discharged in violation of a specific state statute, e.g., one prohibiting sexual orientation discrimination, is the victim of wrongful termination. Liebert v. Transworld Systems (1995) 32 Cal.App.4th 1693. Employers may not discharge employees who report, or are about to report, violations of law (whistle blowing) to a government or law enforcement agency. Labor Code. Sec.1102.

Employees need not report, or threaten to report, the illegal conduct to a government agency to have the protections of California's tortious wrongful termination doctrine. In fact, such employees can complain internally, and still have the protections of the wrongful termination doctrine. Collier v. Superior Court (1991) 228 Cal.App.3d 1117.

Exhaustion of Administrative Remedies: Employees need not make a complaint (i.e., exhaust administrative remedies) to the Calif. Division of Labor Standards Enforcement (“Labor Commission”) before having the protections of the tortious wrongful termination doctrine. Liebert, supra.

Privacy v. Wrongful Termination Claims: An interesting issue exists with respect to the potential contrasting claims of invasion of privacy and tortious wrongful termination. Article I, Section 1 of the California Constitution protects every employee's right to privacy. That privacy encompasses the right to keep private the details of one's own sexual life. Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1019. An employee has the right to demand that an employer keep private any information about his/her sexual orientation, and the employer has a duty to protect such “informational privacy.” Hill v. NCAA 7 Cal.4th (1994) 7 Cal.4th 1.

However, an employee who discloses information about sexual orientation, in order to capture the protections of Labor Code Sec. 1102 and 1102.1 and set up a potential basis for a tortious wrongful termination claim, risks losing any claims to sexual privacy. Liebert, supra, at 1701-1702. Obviously, a glbt employee must make the election to either disclose sexual orientation and have the protections of the tortious wrongful termination statutes, or decline to disclose sexual orientation and have the protections of Constitutional privacy and possibly Civil Code §§ 56 et seq. (discussed later).

Constructive Discharge: An employee does not need to experience an actual discharge to have the right to state a tortious wrongful termination cause of action. Where an employer has given the employee the option of “quitting or being fired,” courts regularly recognize that the act of “quitting” is compelled and no different from a forced discharge. Where an employer has made the working conditions so intolerable or aggravated that any reasonable person in the employee's position would have resigned, then a claim of constructive discharge arises. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1247-1248.

Again, there is no clear law on who or what is considered a “reasonable person” with respect to tortious wrongful termination of a gay, lesbian, bisexual, or transgender employee. Are those forms of harassment and aggravated working conditions that are only intolerable for the glbt community sufficient to justify a constructive discharge for an otherwise straight employee? Or an otherwise straight jury?

The closest answer to the definition of a “reasonable person” arises in a recent case in which a gay man alleged he was forced to quit after numerous instances of harassment based on his sexual orientation. Kovatch v. California Casualty Management (1998) (1st. App. Dist. July 2, 1998). The Court noted that Kovatch could use events both conduct in his presence and directed at him to prove the claims of orientation harassment that led to his quitting. In discussing whether his claim for forced quitting (constructive discharge) could stand, the court held the test was “whether a reasonable person in Kovatch's position would have found the conditions ... intolerable because of harassment on the basis of sexual orientation.” The court did not answer a central question: is that reasonable person a male, or a male homosexual?

Right to Privacy: As discussed earlier, California's Constitution, Article I, Section 1, provides the right to privacy for all employees in California. To establish a claim to privacy, an employee must (a) show a legally protected privacy interest, (b) that she has a reasonable expectation of privacy, and (c) that the employer has made a serious invasion o that privacy interest. Hill, supra, at 39-40.

The Hill case examined the contours of drug testing privacy for athletes participating in NCAA athletics, and did not specifically address the employment setting. However, the Liebert case made application of Hill to the issue of sexual orientation in the work place and discussed both informational privacy as to sensitive/confidential information as well as autonomy privacy in the conduct of one's personal activities. Liebert, supra, at 1701-1702.

One aspect of informational privacy was addressed in a now depublished case, Soroka v. Dayton Hudson Corp. (1991) 1 Cal.Rptr.2d 77. The court in that case addressed the use of the MMPI, a psychological test that asks questions pertaining to areas of the applicant's sexuality and sexual orientation. The court specifically held that such questions constituted an unwarranted invasion of sexual privacy under California law.

Right to Medical Records Privacy: California's Confidentiality of Medical Information Act (“CMIA”) also prohibits those having access to medical records about employees from disclosing the information beyond those permitted by the statute to view the records. Civil Code Sec. 56 et seq. CMIA protects medical information related to disabilities, drug test results, or other medical conditions. Pettus v. Cole, (1996) 49 Cal. App. 4th 402.

Health & Safety Code Sec. 199.20 et seq. imposes both civil and criminal sanctions for the release or disclosure of AIDS test results without prior written authorization. Private employers may not compel polygraph examinations of employees in order to get information about their medical or sexual backgrounds. Labor Code Sec. 432.2(a).

All members of the glbt community should make themselves aware of their rights to medical information privacy under CMIA , and these employees should make some effort to notify their employers about maintaining the privacy of known, specific information which may be arriving at the work place.

Assault, Battery, and Sexual Battery: Employees are protected from all three of these torts in the employment context. A discussion of sexual orientation as a form of sexual harassment follows later in this paper. Although battery and sexual battery are not often pled in the employment context, these causes of action are certainly available and do appear frequently where sexual harassment claims also exist.

The fact that an employee may have a right to pursue claims under the state's sexual harassment statute (i.e., Govt. Code Sec. 12940 et seq.) does not restrict the employee from utilizing the same battery facts to pursue a separate common law tort claim. Rojo v. Kliger (1990) 52 Cal.3d 65.

Defamation: The most common forms of defamatory statements in the employment context are those that accuse an employee (a) of having committed a crime, (b) of having some type of infectious and dreaded disease, or (c) of being incompetent or dishonest in the performance of her job.

Criticism of performance including “lack of job knowledge” and “lack of cooperation.” Agarwal v. Johnson, (1979) 25 Cal. 3d 932, 944.

Statement that an employee was “not a competent engineer” and “a traitor to the company.” Rodriguez v. No. American Aviation, Inc., (1967) 252 Cal. App.3d 889, 894.

Statement that a businessman was “out for a fast buck” “describing a businessman of questionable ethics.” Cameron v. Wernick, (1967) 251 Cal. App.2d 890, 894.

Statements that a [bank employee and lawyer] was “dishonest,” performed “unsatisfactory,” was “inefficient” and “insubordinate,” “had falsified his expense account,” guilty of “embezzlement”, “misappropriated and failed to properly account for funds.” Washer v. Bank of America, (1943) 21 Cal. 2d 822, 825-828.

Statements that paving contractors “were responsible for the delay in the project,” and were “incompetent.” Williams v. Daily Review, Inc., (1965) 236 Cal. App. 2d 405, 411.

Performance evaluation falsely accusing an employee of “criminal conduct, lack of integrity, dishonesty, incompetent, or reprehensible personal characteristics of behavior.” Jensen v. Hewlett-Packard Co., (1993) 14 Cal. App. 4th 958, 965.

Many employers falsely believe they enjoy a privilege against defamation so long as their employees making the false statements make such statements internally. However, the conditional privilege that attaches to employers who make false statements to others in the work place is lost when the privilege is abused or if the publication was motivated by malice. Deaile v. General Telephone Co. of California (1974) 40 Cal. App. 3d 841, 847. Malice for the purposes of showing an abuse of the conditional privilege requires a showing of state of mind arising from hatred or ill will evidencing a willingness to “vex, harass, annoy or injure.” Burnett v. Nat. Enquirer, Inc., 144 Cal. App. 3d 991, 1009; Morcom v. S.F. Shopping News, (1935) 4 Cal. App.2d 284, 290; Davis v. Hearst, (1911) 160 Cal. 143, 157-163.

performance incompetency;

having a contagious diseases;

being a sexual molester; and

having a psychiatric condition.

Intentional Infliction of Emotional Distress: In most instances today where an employee suffers from emotional distress in the work place, the doctrine of workers' compensation preemption serves to bar the employee from bringing a separate claim for infliction of emotional distress. Shoemaker v. Myers, (1990) 52 Cal. 3d. 1, 20; Cole v. Fair Oaks Fire Protection Dist, (1987) 43 Cal. 3d 148. Under this doctrine, employees whose emotional distress arises from the customary and usual events to be expected in the work place (e.g., job transfers, performance evaluations, demotions, promotions, discharge) are not entitled to bring a separate cause of action for infliction of emotional distress.

The exception to this rule occurs when an employee has suffered severe emotional distress from outrageous conduct that is not normally part of the “compensation bargain.” For example, one court has held that conduct comprising sexual harassment is enough to satisfy the prong of the test described as outrageous conduct. Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590. Discriminatory and vulgar statements, or threats, followed up by termination may also amount to such outrageous conduct. Agarwal v. Johnson (1972) 25 Cal.3d 932.

Sexual orientation based harassment that violates Labor Code Sec. 1102.1, or harassment that violates the Fair Employment & Housing Act's prohibition against sex harassment, are both forms of conduct outside the compensation bargain and therefore actionable as intentional infliction of emotional distress. Kovatch, supra. The key, as always, is to identify that the harassment is somehow related to the employee's sexual orientation or perceived sexual orientation.

Labor Code 1101, 1102: Labor Code Sections 1101 and 1102 prohibit employer discrimination against an employee for the expression of political beliefs or for engaging in various political activity. The Supreme Court has identified that, “[t]he struggle of the homosexual community for equal rights, particularly in the field of employment, must be recognized as a political activity.” Gay Law Students Assn. v. Pacific T&T Co. (1979) 24 Cal. 3d 458. In Gay Law Students the court recognized that political expression is protected for those persons who “identify themselves as homosexual, who defend homosexuality, or who are identified with activist homosexual organizations.” Id.

The Division of Labor Standards Enforcement has developed enforcement guidelines for handling claims under Labor Code §§ 1102 and 1102. Those guidelines are appended to this paper. This provision of the Labor Code applies to all California employers, including attorneys and their law firms.

In my opinion, the protections of this portion of the Labor Code apply only to those persons who have expressed themselves politically on the issues surrounding rights of the glbt community. For those who remain “in the closet” and publicly deny any expression of their sexual orientation or identity, the protections of these statutes apparently do not exist. As the Supreme Court made abundantly clear in Gay Law Students, the students' claims were brought on behalf of those who had made their homosexual orientation “manifest.”

“1102.1 (a) Sections 1101 and 1102 prohibit discrimination or different treatment in any aspect of employment or opportunity for employment based on actual or perceived sexual orientation....”

The statute requires that persons harmed under the law file complaints with the Div. of Labor Standards Enforcement (“DLSE” or “Labor Commission”) within 30 days in order to have timely complained. The case law has not yet developed on the consequence of failing to file such a complaint within the 30 day limit. Typically, such deadlines for the filing of complaints are treated as statutes of limitations, therefore subject to tolling and other equitable forms of relief. Labor Code Sec. 1105 specifically provides that nothing in that chapter of the Labor Code will prevent an employee from “recovering damages from his employer for injury suffered ...,” implying that the provisions of this Section are specifically designed not to limit the ability to recover damages.

The case law also has not yet developed on the meaning of the phrase “perceived sexual orientation.” Presumably, the language is similar to the language in other employment discrimination statutes, such as the Americans with Disabilities Act. Under this presumption, the phrase “perceived sexual orientation” would encompass claims based on the employer's belief, or perception (misguided or accurate), that the employee has a certain sexual orientation. The Labor Commission has provided no public guidance on this topic, particularly on the issue of whether the DLSE treats employer misperceptions of transgender employees as “perceived sexual orientation” situations. Again, this portion of the Labor Code applies to small businesses, including attorneys and their law firms.

The DLSE has provided summary statistics on its enforcement activities under the various statutes, and those enforcement statistics are appended to this paper. I find it particularly interesting that the DLSE has not been maintaining statistics on the number of violations of 1102 or 1102.1 that it annually determines to have occurred.

Govt. Code Sec. 12940(h): The Fair Employment & Housing Act (“FEHA”) at this section of he Government Code prohibits sexual harassment in all its forms. While this paper does not intend to explore all the differences between the federal law controlling sexual harassment (i.e., Title VII of the Civil Rights Act) and FEHA, one substantial difference is that California's statute specifically prohibits sexual harassment, whereas the federal law does not.

Another obvious difference in the laws is that the FEHA's prohibition against sexual harassment is aimed at all employers with one or more employees, whereas the federal sex discrimination law pertains only to employers with 15 or more employees. In essence, all attorneys and law firms in California are subject to this prohibition against sexual harassment.

With the exception of one early case, the California courts have consistently held that male employees are protected from male-on-male sexual harassment, and females are also protected from female-on-female sexual harassment. Doe v. Capital Cities (1996) 50 Cal. App. 1038. “We therefore conclude that a cause of action for sexual harassment ... may be stated by a member of the same sex as the harasser, whether based on the quid pro quo theory or the hostile environment theory ....” Mogilefsky v. Superior Court of Los Angeles County (1993) 20 Cal. App. 4th 1409.

Title VII of the Civil Rights Act of 1964: The federal civil rights law prohibits all forms of sex discrimination in employment, for employers having 15 or more employees. In 1979 the U.S. Equal Employment Opportunity Commission put forward guidelines detailing that agency's position that sexual harassment could constitute a form of sex discrimination. The first U.S. Supreme Court case dealing with sexual harassment under Title VII was the court's 1986 decision in Meritor Savings Bank v. Vinson, 477 U.S. 57, 40 FEP Cases 1822 (1986).

When Title VII was passed in 1964, Congressional hearings did not clearly elucidate the meaning of the word “sex” as a protected civil rights category. In fact, the original Southern legislators who appended the category of “sex” to the already agreed upon categories of race, national origin, and religion, in fact voted against the Civil Rights Act once the statute came to them for a full floor vote. These original “sponsors” of the “sex” protection category have been described by many commentators as persons who offered that addition to the protected categories only as an attempt to garner additional opposition against a civil rights bill; their belief was that while many male legislators might shy away from opposing racial equality, during the heated days of 1964, these same male legislators certainly would resist granting equal rights to their wives, secretaries, and other female subordinates. See C. & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Right Act, pp. 115-117 (1985).

As a result, the application of the doctrine of sex discrimination to the rights of gay, lesbian, and transgender employees since 1964 has been both confusing and non-sensical. In many decisions indicates jurists have felt that once the employer admitted discrimination based on sexual orientation, the employer could not have also discriminated against that person on the basis of sex, gender. Obviously, this decision is illogical, particularly in light of the fact that employers are liable for the consequences of any illegal motive, even if that motive is only part of the decision making process.

It is now clear that glbt employees are protected from sexual harassment under Title VII. Oncale v. Sundowner Offshore Serv., Inc., 118 S.Ct. 998. This 1998 Supreme Court case has finally clarified the fact that the sexual orientation (and presumably sexual identity) of the harasser and the victim or not irrelevant to the analysis of sexual harassment under Title VII. As long as the victim can show that his/her sex was a factor related to the victimization, that employee has the right to bring a case of sex discrimination, regardless of sexual orientation. The case made clear that a victim is not required to identify the sexual orientation of the harasser, or even that some sexual gratification motive was behind the harassment. This case is significant in that it disposes of the dozens of lower court and appellate court decisions holding that members of the gay, lesbian, and transgender community simply have no protection from sex discrimination.

It should have been clear all along that employees, regardless of their sexual orientation, were protected from sex discrimination. In 1989 the Supreme Court held that discrimination on the basis of sexual stereotyping (also called sexual nonconformism) is illegal. Hopkins v. Price Waterhouse, 490 U.S. 228. In the Hopkins case, the employer's partners made the following statements about Ann Hopkins when evaluating her for potential partnership:

she needed to take a “course in charm school”

“she may have overcompensated for being a woman”

her use of profanity was “one of the negatives” about her

“she is a lady using foul language”

she came across as “macho”

she had “matured from a touch-talking, somewhat masculine hard-nosed mgr. to an authoritative, formidable but much more appealing lady partner”

she needed “social grace”

she should “walk more femininely, wear make-up, have her hair styled, and wear jewelry”

she's a “women's libber”

they are too “curt, brusque, and abrasive”

they are like “Ma Barker” and “one of the boys”

“In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

“As for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group .... Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Id. quoting from Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 707, n. 13 (1978).

“It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring 'a course at charm school.' Nor ... does it require expertise in psychology to know that, if an employee's flawed 'interpersonal skills' can be corrected by a soft-hued suit, or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism.” Hopkins, supra at 251.

In short, the doctrine of sexual stereotyping is already available, as a method of proving sex discrimination, and the doctrine of stereotyping (also referred to as non-conformism) applies equally to males and females. At least one commentator has found that sexual stereotyping is at the core of discrimination based on sexual orientation. Elvia R. Arriola, Law and the Gendered Politics of Identity: Who Owns the Label “Lesbian”?, 8 Hastings Women's L.J. 1, 2 (1997). My personal recommendation is that those who bring claims of sex based discrimination under Title VII and the FEHA, bring those claims as victims of sexual stereotyping, without emphasis on status, or perceived status, as gay, lesbian, bisexual, or transgender. The government investigators (i.e., consultants at the DFEH) simply “don't get it.”

Govt. Code Sec. 12940: While the FEHA does not have a series of cases exploring the concept of “sex stereotyping,” I believe the theory is as equally applicable under FEHA as the theory is applicable under Title VII of the Civil Rights Acts. The same types of stereotyped comments about women proscribed under Title VII would also be prohibited under the FEHA. In fact, Courts generally do not restrict FEHA to the standards under Title VII and instead, treat the breadth of FEHA to encompass matters not foreseen under Title VII. Flait v. North Amer. Watch Corp. (1992) 3 Cal.App.4th 467.

Both Title VII of the Civil Rights Act and the Fair Employment & Housing Act provide protections from sex discrimination and sexual harassment that are applicable to, and present protect, members of the gay, lesbian, bisexual, and transgender community. That same group of employees enjoys protections from tortious wrongful termination, tort violations, and contract violations.