California Court Rules: Harassment Based on Sexual Orientation Is Sexual Harassment
A recent court of appeals case, Decloedt v. Radnet Management, Inc. establishes that harassment based on an employee’s sexual orientation qualifies as “sexual harassment” under California’s Fair Employment and Housing Act (FEHA). The ruling also has implications for employers who rely on arbitration agreements to resolve employment disputes.
The Arbitration Issue: Why This Matters
Many employers have arbitration agreements with their employees. These agreements typically require the parties to resolve workplace disputes through private arbitration rather than in court. Arbitration can offer certain advantages, including confidentiality, reduced discovery, and (in some cases) faster resolution.
However, a federal law called the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), which took effect in March 2022, changed the landscape. Under the EFAA, an employee who alleges sexual harassment can choose to bypass arbitration and take the case to court—even if they signed an arbitration agreement.
The Decloedt case addressed a key question: Does harassment based on sexual orientation count as “sexual harassment” under the EFAA? The court’s answer was yes.
What Happened
Trevor Decloedt worked as a patient service representative at RadNet, a medical imaging company. In early 2022, he began working at a desk next to a coworker named Susana Ceballos. According to Decloedt’s complaint, Ceballos began harassing him based on his sexual orientation. She allegedly made comments like “you shouldn’t be gay; it’s not okay; it’s sinning.”
Decloedt also alleged that Ceballos was frequently angry and aggressive toward him, including threatening him by saying “I am so angry, I could kill you,” pulling his hair on multiple occasions, and at other times inappropriately caressing his hair. Decloedt allegedly reported Ceballos’s conduct to his supervisor, Joe Zambrano, and to another lead employee, Juan Mercado. Nothing was done.
In November 2022, Ceballos allegedly grabbed Decloedt’s hair so forcefully that he fled to the restroom to escape. He said he reported the incident again and still nothing was done.
A few days later, HR called Decloedt in—not to address his complaints, but to discipline him based on a complaint from Ceballos that he had been “disrespectful.” Decloedt told HR about everything: the harassment, the physical attacks, and his repeated reports to his supervisor. He told them that the harassment had become so severe that he had contemplated suicide. According to his complaint, HR took no action. The company terminated Decloedt’s employment on February 28, 2023.
Decloedt sued RadNet, his former supervisor, and Ceballos, alleging, among other causes of action, hostile work environment harassment, sexual harassment, failure to prevent harassment, wrongful termination, and other claims. Importantly, he alleged that the harassment was based on his sexual orientation.
RadNet moved to compel arbitration, pointing to the arbitration agreement Decloedt had signed upon hire. The trial court denied the motion, finding that Decloedt’s sexual harassment claim triggered the EFAA’s exception to arbitration. RadNet appealed.
What the Court Decided
The Court of Appeal affirmed the trial court’s ruling, holding that RadNet could not force Decloedt to arbitrate his claims. The Court addressed two key issues.
Issue 1: Is Sexual Orientation Harassment the Same as Sexual Harassment?
RadNet argued that harassment based on sexual orientation is different from harassment based on sex and therefore should not qualify as “sexual harassment” under the EFAA. The court disagreed.
The Court explained that harassment based on someone’s homosexuality is, by definition, harassment based on that person’s sex. It reasoned that you cannot discriminate against someone for being gay without taking their sex into account. Therefore, sexual orientation harassment falls within the legal definition of harassment “because of sex” under FEHA—and qualifies as sexual harassment for purposes of the EFAA.
The Court explained that harassment based on someone’s homosexuality is, by definition, harassment based on that person’s sex. It reasoned that you cannot discriminate against someone for being gay without taking their sex into account. Therefore, sexual orientation harassment falls within the legal definition of harassment “because of sex” under FEHA—and qualifies as sexual harassment for purposes of the EFAA.
Issue 2: Did Decloedt Allege Harassment That Was “Severe or Pervasive” Enough?
RadNet also argued that even if sexual orientation harassment counts as sexual harassment, Decloedt’s allegations were not serious enough to state a valid claim. Under California law, a hostile work environment claim requires conduct that is either “severe” (very serious) or “pervasive” (frequent and ongoing) enough to make the workplace abusive.
The Court found that Decloedt’s allegations were sufficient. Looking at the complaint as a whole, the Court concluded it could reasonably be read to allege that over the course of several months, Ceballos repeatedly condemned Decloedt for being gay, threatened him, and physically attacked him by pulling his hair—all motivated by her alleged disapproval of his sexual orientation.
The Court rejected RadNet’s attempt to separate Ceballos’s anti-gay comments from her aggressive behavior. The employer tried to argue that the verbal comments and the physical conduct were unrelated. The Court disagreed, noting that a reasonable inference could connect the two: Ceballos’s anti-gay hostility motivated both her words and her actions.
The Court also noted that Decloedt’s allegations that he contemplated suicide and fled to the restroom for safety supported the inference that the harassment was severe enough to disrupt his emotional well-being and ability to do his job.
Steps Employers Should Take Now
Review your arbitration program. Consult with employment counsel about the scope and effectiveness of your arbitration agreements in light of the EFAA. Understand that arbitration may not be available for sexual harassment disputes.
Update your anti-harassment policies. Make sure your policies explicitly prohibit harassment based on sexual orientation, gender identity, and gender expression. Employees and managers should understand that this type of harassment is recognized as a form of sexual harassment under California law.
Train your supervisors. Front-line managers are often the first to receive harassment complaints. They need to understand that harassment based on sexual orientation is sexual harassment, that they must escalate complaints immediately, and that their failure to act can expose the company to liability.
Respond promptly and document everything. When you receive a harassment complaint, investigate promptly and take appropriate corrective action. Document every step—the complaint, the investigation, the findings, and the remedial measures.
Look at the whole picture. When evaluating harassment complaints, don’t compartmentalize individual incidents. Consider whether the conduct, taken together, forms a pattern.
The Bottom Line
The Decloedt decision demonstrates that California courts will treat harassment based on sexual orientation as sexual harassment under FEHA. For employers, this means broader potential liability and limited ability to enforce arbitration agreements The best defense is a proactive approach: clear policies, trained supervisors, and a culture that takes every complaint seriously.
Molly K. Thorpe is an Employment Attorney at Lewitt Hackman.