Kelley v. Conco: Court of Appeal Issues Same Sex Harassment Decision

In Kelley v. The Conco Companies (6/6/11) --- Cal.App.4th ----, 2011 WL 2177235, the plaintiff, Kelley, was an apprentice ironworker. He complained that he was subjected to extremely demeaning, sexually explicit comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor. The defendant changed his work site to separate him from his harassers, but his union suspended him from its apprenticeship program and, after the suspension expired, his employer did not rehire him. 

Kelley filed suit, and the court (Alameda County Superior, Judge True) granted the defendants' motion for summary judgment on his claims for sexual harassment, retaliation and related causes of action. The Court of appeal affirmed, except as to the retaliation claim.
The Court held that the defendants did not subject Kelley to sexual harassment, even though the comments directed at him were "graphic, vulgar, and sexually explicit" and "expressed sexual interest and solicited sexual activity." Slip op. at 6. 

There was, however, no “credible evidence that the harasser was homosexual” or that the harassment was “motivated by sexual desire.” Kelley makes no contention here that Seaman's statements were intended to be taken literally. Instead, it appears undisputed that in the environment in which this incident took place, sexually taunting comments by supervisors and employees were commonplace, including gay innuendo, profanity, and rude, crude and insulting behavior. Such comments were made both jokingly and in anger. 

Ibid. The Court declined to follow Singleton v. United States Gypsum Co. (2006) 140 Cal.App.4th 1547, in which the Second District Court of Appeal found that same-sex harassment was gender-specific because the same conduct would not have been directed toward a member of the opposite sex and thus constituted discrimination because of sex. 

Singleton's reasoning inevitably leads to the conclusion that any hostile, offensive and harassing comment or conduct, with or without sexual content or innuendo, made to one gender and which would not be made to the other, would constitute discrimination because of sex within the scope of FEHA. 

Slip op. at 8. 
The Court reversed as to the retaliation cause of action because Kelley reasonably believed that the conduct was discriminatory, and his complaints were protected activity. Slip op. at 10. 

The opinion is available here.