Without a showing of sexual intent or motivation, threats of sodomy and "grossly offensive comments" of a sexual nature made by a male supervisor to a male employee are not sufficient to support claims for same-sex harassment and discrimination under California's Fair Employment and Housing Act ("FEHA"). Kelley v. The Conco Companies (June 6, 2011). Nonetheless, the California Court of Appeal found that teasing and ostracism by non-managerial coworkers was sufficient to support a claim for retaliation where the company knew or should have known of the retaliatory conduct and failed to take reasonable actions to end it.

The Facts

During Patrick Kelley's first week on the job as an ironworker, his supervisor and coworkers made several grossly offensive, sexually explicit comments to him. For example, his supervisor told Kelley he wanted to sodomize him, while a coworker stated he was going to make Kelley perform oral sex on the supervisor. Although the supervisor apologized and stopped making these comments after Kelley complained to management, other employees began calling Kelley a "bitch," "faggot," "narc," or "snitch" for complaining. This conduct persisted for several months and was overheard by other supervisors at the company. Kelley complained about the conduct repeatedly and was regularly transferred to other job sites, but was told nothing could be done because that is "just the way these guys are."

Kelley sued Conco and his former supervisor for sex discrimination, sexual harassment, and retaliation in violation of the FEHA. After the trial court granted Conco's motion for summary judgment, Kelley appealed.

The Court's Decision in Kelley

The Court of Appeal began its analysis by referring to the Supreme Court's opinion in Oncale v. Sundowner Offshore Services, Inc. and acknowledging that it sometimes is difficult to determine "when same-sex harassment amounts to discrimination because of sex." Based on its reading of Oncale, the court noted that "workplace harassment, even harassment between men and women, is [not] automatically discrimination because of sex merely because the words used have sexual content or connotations." Rather, the court found that the critical issue is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."

After assessing the various "evidentiary routes" Kelley could use to create an inference of gender-based disparate treatment, the court found that evidence of the supervisor's explicit sexual overtures and threats was not sufficient by itself to create triable issues of material fact with respect to Kelley's claims without some proof that the supervisor was motivated by sexual desire or intent.

Kelley disagreed, citing Singleton v. United States Gypsum for the proposition that, even if no sexual intent or desire could be established (e.g., if the male supervisor is heterosexual), the comments supported his claim of discriminatory harassment because the comments attacked his identity as a heterosexual male and would not have been leveled against a female.

The Kelley court acknowledged that Kelley's supervisor may have treated him differently than he would have treated a woman, but found that the relevant inquiry "is not whether the two sexes are treated differently . . . but whether one . . . sex is treated adversely to the other sex." Without any evidence indicating that the supervisor's comments were motivated by sexual intent or desire, the court concluded that Kelley could not prove the sexually offensive comments and threats were made "because of sex," and affirmed the lower court's dismissal of his sex discrimination and harassment claims.

Although Kelley did not prevail on his sex discrimination or harassment claims, the court found that the Conco could be held liable for retaliation in violation of FEHA because the ostracism, bullying, and harassment he suffered at the hands of his non-managerial coworkers was severe or pervasive, and because Conco, in light of Kelley's repeated complaints, should have known about the retaliatory conduct and taken reasonable actions to end it.

What Kelley Means For Employers

Kelley clarifies the difficult burden of proof for plaintiffs claiming same-sex harassment under the FEHA based on sexually suggestive comments, holding that this type of conduct is not sufficient by itself to satisfy FEHA's "because of sex" standard. Post-Kelley, plaintiffs asserting these claims must show that the harasser was motivated by sexual desire, or they must come forward with some other evidence showing that they were treated adversely compared to members of the opposite gender. Kelley also is a good reminder that retaliation claims under the FEHA are available for the retaliatory conduct of non-managerial employees when the employer knew or should have known of the conduct, and failed to take action.