07-30-2026
For the first time, a California appellate court has held that harassment based on sexual orientation falls within the sexual harassment provision of the state’s anti-discrimination statute. Sexual harassment precluded by the state’s statute also falls under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA), which prohibits employers from requiring employees to arbitrate sexual assault and harassment claims.
Trevor Decloedt alleged that his coworker subjected him to offensive comments about his sexual orientation, including saying, “You shouldn’t be gay; it’s not okay; it’s sinning.” Decloedt further asserted that the coworker pulled his hair and threatened to kill him, culminating in a physical attack. He complained to HR but alleged that the company failed to act. The employer, Radnet Management, moved to compel arbitration based on the employment agreement Decloedt signed at his time of hire.
Using the U.S. Supreme Court’s decision in Bostock v. Clayton County, the California appellate court reasoned that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.” The defendant employer had argued that because FEHA lists “sex” and “sexual orientation” separately, offering protection for both, sexual orientation harassment was a distinct category. The appellate court rejected that argument reasoning that an employer cannot logically target an employee for being gay without considering that employee’s sex. Sexual orientation harassment is harassment because of sex, according to the appellate court.
California’s EFAA limits the use of pre-dispute arbitration agreements (i.e., those signed at the employee’s hire) in employment disputes arising out of sexual assault or sexual harassment. The statute went into effect at the height of the #MeToo movement to limit the use of arbitration to keep sexual misconduct from public scrutiny. Only sexual assault or sexual harassment related claims fall under its provisions. With this appellate court’s holding, the employer cannot compel arbitration.
Takeaways: This decision broadens the harassment categories that may trigger the EFAA in California. Employers with California employees may want to review their materials to ensure they address sexual orientation harassment and provide training to employees.