Recently, the California Court of Appeal in Kelley v. Conco Companies affirmed the dismissal of a male employee's sexual harassment claim because there was no evidence that the alleged harassment was based on his gender.  Kelley, an ironworker, complained to his employer that his male supervisor and coworkers made sexually explicit and demeaning comments and gestures towards him.  Further, Kelley alleged that he suffered retaliation from coworkers after he complained.

The comments made by Kelley's supervisor included calling Kelley his "bitch"; telling him that he had a "nice ass" and he would "look good in little girl's clothes"; and making explicit, vulgar comments regarding homosexual sex acts when Kelley was bent over or on his knees to perform work-related tasks.  Kelley's coworkers engaged in similar conduct, including telling Kelley that he should perform sexual acts on them and calling him a homosexual epithet, as well as a "bitch" and a "snitch," for complaining to management.

Kelley sued Conco for sexual harassment under the California Fair Employment and Housing Act.  While conceding that the conduct and comments were "graphic, vulgar, and sexually explicit," the court held there was no evidence that Kelley's supervisor or his coworkers were homosexual, that the harassment was "motivated by sexual desire," or that the comments were due to Kelley's actual or perceived sexual orientation.  Thus, the court dismissed Kelley's claim for sexual harassment, but allowed him to proceed with his retaliation claim.  This case demonstrates that although the alleged conduct may be severe or repugnant, courts will steadfastly uphold the essential requirement that the harassment be gender based