Firefighter Gay Pride Verdict Upheld

The annual San Diego Pride Parade is a celebration of the local gay, lesbian, bisexual and transgendered communities. Four members of the City of San Diego Fire-Rescue Department – John Ghiotto, Chad Allison, Jason Hewitt and Alexander Kane – were given a direct order to participate in the Pride Parade against their will.

After being forced to participate in the Pride Parade, the firefighters filed a lawsuit against the City, alleging, among other things, that they were subject to unlawful sexual harassment during the parade. A jury awarded them damages ranging from $5,000 to $14,200. The trial court awarded attorney fees to the firefighters in the amount of $532,980.35 and litigation costs in the amount $61,383.51. The City then challenged the jury’s verdict in the California Court of Appeals, arguing that the harassment was not severe or pervasive because (1) the offensive parade conduct occurred only intermittently over the course of three hours; and (2) the firefighters were not physically assaulted or threatened with assault but were, instead, “subjected to what can fairly be described as simple teasing, offhand comments, and extremely isolated incidents of partial nudity or lewd behavior.”

In a lengthy decision, the Court rejected the City’s arguments. The Court found that the following evidence supported the jury’s award:

1. When the firefighters were in the parade’s staging area, they saw a man on a float in short spandex pants “dancing, touching himself, fondling, in front of three men.” He was “posing and gyrating his hips, grabbing his genitalia.”

2. Also while in the staging area, a man approached the firefighters and repeatedly offered them Twinkies, which Kane, Allison and Hewitt interpreted to be sexually suggestive, based in part on the speaker’s tone of voice.

3. Also while in the staging area, Allison saw his uncle’s life partner and greeted him with a hug and a kiss on the cheek. A man standing behind Allison said, “Oh, look, the fireman is giving out hugs; I hope he gives me a hug.” The man was wearing a shirt stating “Have you ever ridden a fat man?” and was pointing to his shirt while looking at Allison.

4. At the beginning of the parade, the Firefighters initially waved to the crowd. However, they soon stopped because, as Hewitt explained, in response to the waves certain spectators “would start licking their lips and doing simulated sex acts, grabbing their crotch.” As Kane stated, “everybody was kind of sexually giving us gestures, licking their lips, saying things,” which made him “uncomfortable” and caused him to stop waving. Allison stopped waving to the crowd after a man in sado-masochistic gear responded by rubbing his nipples and wagging his tongue at Allison while making eye contact.

5. More than once during the parade, Kane saw “simulated sex acts” in which two men pretended to have anal sex, and he saw men grabbing other men’s genitals while looking toward him. Allison similarly saw a man groping another man’s genitals through a tight-fitting bathing suit, and he also saw men blowing kisses at him. Ghiotto saw a man “with his penis hanging out” during the parade, as well as people groping themselves and “grinding on each other.”

6. All of the firefighters observed numerous men wearing G-strings that exposed their buttocks and women wearing pasties on their otherwise-exposed breasts.

7. All of the firefighters heard numerous lewd comments directed at them. As Kane explained, he heard comments directed at him during the parade revolving around the word “hose,” including “show me your hose,” “let me blow your hose,” “pull out your hose,” and “you have a long hose.” He also heard comments involving “‘mouth-to-mouth” and “you make me hot.” Kane estimated that he heard between 100 and 1,000 such comments. According to Kane, “at first it was kind of funny,” but “when they add up, they become really frustrating” and “difficult to handle.”

In the eyes of the Court, “in light of this evidence, we reject the City’s characterization of the atmosphere that the firefighters experienced at the parade as simple teasing, offhand comments, and extremely isolated incidents of partial nudity or lewd behavior. The jury was well within the bounds of reason to conclude that the sexual conduct at the parade directed toward the firefighters was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex, and that the conduct of some of the parade spectators, when taken together over the course of the parade, was conduct which a reasonable person in the plaintiffs’ position would find severely hostile or abusive.”

Ghiotto v. City of San Diego, 2010 WL 4018644 (Cal. App. 4 Dist. 2010).

This article appears in the February 2011 issue