In a time when California courts are busier than ever, the California Court of Appeal recently did double duty by issuing an opinion that both decided an issue of first impression in California and implicitly approved Senate Bill ("SB") 292, a relatively new law (and one that we blogged about last year) clarifying that sexual harassment under California’s Fair Employment and Housing Act (“FEHA”) does not require proof of sexual desire towards plaintiff.

The Court’s opinion in Max Taylor v. Nabors Drilling USA, LP can be found here. (Warning: this one is not family friendly!)  The case involved an employee working as a “floorhand” on an oil rig. For anyone who has never worked on an oil rig before (myself included), a floorhand is usually the lowest member of a drilling crew and is given the dirtiest and most physically demanding jobs. During the course of plaintiff’s employment, his male supervisor subjected him to serious and extreme harassment. For example (and this is where it gets bad, although we’re only giving you the PG version), his supervisors called him multiple derogatory terms for gay men, made several offensive comments when he had an infection on his face, posted his photograph in the restroom with offensive graphics, urinated on him, spanked him, and aroused themselves in his presence and then asked him to sit on his lap.

Plaintiff subsequently filed a lawsuit alleging numerous claims, including a claim for hostile work environment sexual harassment. After a 10-day jury trial, the jury returned a verdict in plaintiff’s favor on this cause of action and awarded him damages totaling $160,000. The court subsequently denied defendant’s motion for judgment notwithstanding the verdict and awarded plaintiff’s counsel attorneys’ fees in the amount of $680,520. 

Defendant appealed arguing that its motion for judgment notwithstanding the verdict should have been granted because plaintiff failed to establish that defendant’s supervisors (who were not homosexual themselves) were motivated by sexual desire. The Court rejected this argument and held that sexual desire was not a required element of a sexual harassment claim under FEHA. This ruling is in line with SB 292, which we blogged about shortly after it was signed into law by Governor Brown last August. While the Court did not rely on SB 292 in rejecting defendant’s argument, its holding implicitly approves the law and the California Legislature’s reasoning and conclusion. 

Defendant also argued that the judgment should be overturned due to an error in the jury’s verdict. While the Court agreed with defendant that the verdict was defective, it affirmed the trial court’s ruling that defendant waived any defects because it failed to object before the jury was discharged. The Court also ruled, In a matter of first impression, that the defect constituted harmless error because the judgment was “clearly right.” 

While Taylor is yet another harsh reminder that California employers must continue to train their supervisors in order to avoid potentially massive damage awards, it also teaches an equally important lesson to practitioners. Namely, that any perceived defects during trial must be immediately and, if necessary, repeatedly brought to the trial judge’s attention in order to avoid waiving any issues on appeal. Only by voicing these objections can an attorney be sure to preserve any and all arguments for his or her client.