Four San Diego, California, firefighters who were required over their protest to operate a fire engine as part of the San Diego Gay Pride Parade in 2007 have prevailed against the City in their suit alleging workplace sexual harassment in violation of the California Fair Employment and Housing Code (FEHC). On October 14, the California 4th District Court of Appeal ruled in Ghiotto v. City of San Diego, 2010 Westlaw 4018644, that a jury verdict in favor of the firefighters on their hostile environment sexual harassment claim would stand, as would the trial court's award of damages and attorneys fees. However, the court also affirmed the Superior Court's rejection of the plaintiffs' First Amendment claim, agreeing with the trial court that the Fire Department's post-parade change of policy to make participation in future Pride Parades voluntary, had mooted the only relief the plaintiffs had sought on their constitutional claim, an injunction against requiring objecting fire fighters to participate in such events.
A significant contingent from the Fire Department was planning to march (on a voluntary basis) in the July 21, 2007, San Diego Pride Parade. Parade organizers had requested that a fire engine be added to the contingent. The department planned to use volunteers, but two days before the parade the crew from station 25 withdrew due to a member's family emergency. Department officials decided to assign a fire engine from Station 5 in its place. At the time, the Department had no formal policy about parade staffing. When the crew from the assigned engine protested the assignment and suggested that volunteers be used for this purpose, they were overruled by Department officials, and Assistant Fire Chief Jeffrey Carle authorized a "direct order," defiance of which would be insubordination. Members of a paramilitary public safety force tend to snap to compliance at a direct order, so the grumbling firefighters showed up for their duty.
What they encountered – indeed, what they later testified they expected to encounter, which was why they objected to the assignment – was the sometimes sexually-charged atmosphere of a Pride Parade, including being subjected to sexual taunts and comments and sexually explicit images of same-sex activity emanating from gay observers of the Parade. In bringing suit afterwards, they claimed that their experience qualified as a hostile environment under the state's Fair Employment and Housing Code, and that ordering them to participate in a gay rights parade — a quintessential expressive event — violated their free speech rights.
California courts follow federal case law relatively closely in determining whether conduct of a sexual nature is sufficiently severe or pervasive to have altered the employee's working conditions, even though – unlike Title VII of the federal Civil Rights Act – the FEHC contains an explicit sexual harassment provision that bans sexual harassment of employees directly. When the allegation is that the sexual conduct emanates from third parties, rather than from supervisors or co-workers, the court is usually looking for some negligence on the part of the employer as a basis for imposing liability to compensate the plaintiffs for any injury they suffered. In this case, there was evidence that the Fire Department officials were aware of the kind of conduct that occurs at Pride Parades and nonetheless ordered these non-gay employees to participate over their objections.
These firefighters testified that at first they thought the comments being directed at them were funny, but as the assignment wore on they found the comments becoming irritating, degrading, and ultimately upsetting. The jury, charged on the severe or pervasive standard, found for the plaintiffs, and the Court of Appeal saw no reason to set aside that verdict, rejecting the city's argument that as there was no physical contact and the parade lasted but a few hours, it was impossible for the jury to have rationally found severe or pervasive harassment. The court considered that despite the duration of the parade, harassment could be considered pervasive if it persisted throughout the parade, and despite the lack of actual sexual contact, the court found that the jury could reasonably have concluded that the men were exposed to an objectionable, offensive barrage of comments and gestures sufficient to be considered "severe."
This is not a typical application of sexual harassment theory, but the court's lengthy opinion does a good job of explaining why the standard hostile environment theory can be lined up with the facts in this case. "Our conclusion is based on the Firefighters' testimony — which the jury was entitled to credit — that they were the target of repeated unwelcome sexual conduct that was specifically directed at them as they participated in the parade at the direct order of the Department," and since they were there under a direct work order, the court noted that the parade became "part of their work environment."
Here's a sample of what the testimony showed: "As described by Kane, the atmosphere at the parade included a lot of 'hypersexual' people who 'thought we wanted to have a good time with them.' Although acknowledging that the vast majority of the parade spectators acted and were dressed appropriately, Kane testified that the sexually related conduct from a portion of the spectators was 'continuous throughout the parade.' Allison and Kane felt trapped in the parade. As Ghiotto testified, 'We were basically put on a public display, I felt. I never felt humiliated, embarassed in public like that….' Ghiotto testified that he had no objection to the 'gay lifestyle,' and Kane testified that he had no problem seeing same-sex couples showing public affection. Allison testified about a gay uncle, with whom he is very close, and stated that he has no trouble serving the gay community. Hewitt similarly testified that he had no problem with gay people or with serving Hillcrest's gay community. Thus, as we perceive the trial testimony, the jury could reasonably conclude that the Firefighters' claim of sexual harassment was not based on their exposure to the gay community during the parade, but rather, as Ghiotto explained, they 'didn't want to be put on a pedestal in public view and be ridiculed' as the center of sexual attention in the parade. We stress, therefore, that our evaluation of whether the conduct that the Firefighters experienced at the Pride Parade was sufficiently severe or pervasive to constitute sexual harassment does not depend on the fact that the conduct occurred at an event celebrating and attended by the City's gay community. Instead, the relevant point is that because of a direct order, the Firefighters were required to participate in a public event at which a barrage of sexual attention was directed specifically at them. The same analysis would apply to any type of public event, and to harassment victims and perpetrators of any gender and any sexual orientation."
Thus, the court found evidence supported the jury's conclusion, and rejected the City's attempt on appeal to paint the situation as "simple teasing, offhand comments, and exteremely isolated incidents of partial nudity or lewd behavior." Since the City "knew or should have known of harassing conduct occurring at the Pride Parade," and did not take "reasonable steps to prevent it," the court found the evidence sufficient to support the verdict. Pursuant to the jury's verdict, each of the four firefighters is to receive monetary damages, and an award of attorneys fees and costs totally around $600,000 (an amount substantially outweighing the actual damages awarded) was upheld; indeed, the case was remanded so the trial court can make an additional fee award for the appeals process.
Given the amount of money at stake, it would not be surprising if the City seeks review from the California Supreme Court.