Sexual Orientation Harassment Qualifies Under EFAA

Harassment based on sexual orientation qualifies as sexual harassment under California’s FEHA, triggering the arbitration exception found in the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA), an appellate court in the state has determined.

Trevor Decloedt filed suit against Radnet Management and various individuals at his former employer in 2024, asserting 11 causes of action under California state law, including sexual harassment and hostile work environment claims under FEHA.

Decloedt claimed that he was subjected to severe and pervasive harassment based on his sexual orientation by coworkers, who repeatedly made derogatory remarks about his homosexuality and engaged in threatening and unwanted physical conduct.

The defendants moved to compel arbitration, relying on an arbitration agreement that Decloedt signed at the start of his employment.

Denying the motion, the trial court found that Decloedt had sufficiently alleged a sexual harassment claim under FEHA, triggering the exemption from arbitration provided by the EFAA.

The defendants appealed and the appellate panel affirmed.

First, the court determined that harassment on the basis of sexual orientation amounts to sexual harassment under FEHA, relying on , where the U.S. Supreme Court held that “[a]n employer who fires an individual merely for being gay or transgender defies the law. … When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play – both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).”

“We agree with Bostock’s holding that discriminating against an employee because of his or her homosexuality is discrimination on the basis of sex,” the court wrote. “That logic applies with equal force when determining whether an employer who has harassed an employee because of his or her homosexuality has engaged in harassment because of the employee’s sex. For that reason, we conclude sexual orientation harassment is a form of harassment because of sex under FEHA.”

The court also cited , where an appellate court in the state found that the EFAA applied to a plaintiff’s claims of sexual harassment under FEHA where he alleged that he was subjected to hostile and derogatory conduct based on his perceived sexual orientation.

Further, Decloedt sufficiently alleged that he was subjected to severe or pervasive harassment because of his sexual orientation, the court found.

He specifically claimed that a coworker repeatedly chastised him over the course of several months for his homosexuality, and “frequently expressed anger” by stating that she was so angry she could kill him and by pulling his hair several times. These actions caused him to contemplate suicide, according to the complaint, allowing the court to reasonably infer that her behavior disrupted Decloedt’s emotional tranquility and interfered with his sense of well-being or ability to perform his job.

To plead a FEHA sexual harassment claim, Decloedt did not have to specify the precise frequency with which he was subjected to harassment, the court added.

“[W]e may infer from that allegation that [the coworker] expressed her disapproval of Decloedt’s sexual orientation on multiple occasions between early 2022 and November 2022,” the court said.

Therefore, because Decloedt sufficiently pleaded a FEHA sexual harassment claim, the EFAA applied to his lawsuit and the motion denying arbitration was affirmed.

To read the opinion in Decloedt v. Radnet Management, Inc., click .

Why it matters: The court found that sexual orientation harassment claims under FEHA constitute sexual harassment disputes under the EFAA, triggering the federal statute’s exemption for such claims from arbitration.