Sexually Explicit and Offensive Comments, Without a Showing of Sexual Desire by the Harasser, Are Insufficient To Establish Same Sex Harassment

By: Grace Chan
June 16, 2011

In order to establish a claim for same sex harassment under California's Fair Employment and Housing Act ("FEHA"), claimants now must show that the harassment was motivated by sexual desire.  Further, in cases where the harassment serves as a basis for a claim of sex discrimination, claimants must show that they were treated not just differently, but adversely to members of the other sex.  

In Kelley v. The Conco Companies, the California Court of Appeal in San Francisco considered whether extremely violent and sexually explicit comments made by a male supervisor to a male subordinate employee were sufficient to establish both sexual harassment and sex discrimination.  Patrick Kelley was hired as an apprentice ironworker at Conco, a construction company.  A few days after he started his employment, he was exposed to multiple violent, offensive and sexually explicit comments that were directed at him.  David Seaman, his supervisor, told Kelley multiple times that he wanted to sodomize him and a co-worker stated he was going to force Kelley to perform oral sex on Seaman.  Kelley complained to the job site's Field Safety Manager, who spoke with Seaman and asked Seaman to calm down. 

That same afternoon, two co-workers called Kelley names and threatened to jump him after work.  When Kelley left the work site, he called the Conco dispatcher, informed him of what had happened and requested that the dispatcher assign him to a different job site.  The dispatcher agreed and told him to report to a different work site the next day. 

At the next work site, Kelley was again called names by his co-workers, including "bitch," "faggot," and "narc" or "snitch" for complaining about Seaman.  Kelley reported the incident to the Conco dispatcher, who responded, "that's the way the trade is, man." 

Kelley sued for sex discrimination, sexual harassment, retaliation and related causes of action under FEHA.  Conco moved for summary judgment, which was granted by the trial court, and Kelley appealed. 

The Court of Appeal first considered Kelley's claim of sex discrimination and noted that his sole argument on appeal with regard to this claim was that he was sexually harassed.  As such, the Court considered Kelley's claim of sex discrimination simultaneously with his claim of sexual harassment. 

FEHA makes unlawful the express or implied conditioning of employment benefits on submission to or tolerance of unwelcome sexual advances, or the creation of a work environment that is hostile or abusive on the basis of sex.  In order to establish a prima facie case of hostile or abusive work environment, Kelley was required to show that: (1) he belongs to a protected group; (2) he was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; and (4) the harassment complained of was sufficiently severe or pervasive so as to alter the conditions of employment. 

The U.S. Supreme Court has previously held that sexual harassment within the meaning of Title VII could occur between members of the same sex.  Here, the Court concluded that the same principle applies to FEHA actions as well.  It explained, however, that the mere fact harassment has sexual content is not sufficient to establish that the harassment amounted to discrimination because of sex.  Workplace harassment, even when between men and women, does not automatically amount to sex discrimination even if the harassment has sexual content or connotations.  Rather, the determinative factor is whether members of one sex are subjected to disadvantageous terms or conditions of employment to which members of the other sex are not subjected. 

The Court noted that the language used by Seaman and Kelley's co-worker was unquestionably graphic, vulgar and sexually explicit.  Moreover, the literal meaning behind their statements expressed some sexual interest or solicited sexual activity.  Nevertheless, the Court found that there was no evidence the harassers were homosexual, the harassment was motivated by a sexual desire, or that the words resulted from Kelley's actual or perceived sexual orientation. 

Kelley argued that he was not required to show any sexual intent or sexual motivation in order to establish his claims of sex discrimination and sexual harassment.  As support, he cited to Singleton v. United States, where the California Court of Appeal in Los Angeles held that same sex harassment was gender specific and thus amounted to discrimination on the basis of sex.  In Singleton, male coworkers made homophobic comments to a male heterosexual plaintiff.  The Court found that Singleton was disparately treated because of his sex because the harassing comments targeted his heterosexuality, thereby treating him differently than if he were female. 

Here, the Court expressly disagreed.  It argued that the principles of Singleton would inevitably lead to the conclusion that any harassing comment or conduct, with or without sexual content or innuendo, made to a member of one gender but not to the other, would amount to discrimination on the basis of sex.  The Court explained that the crucial issue is not whether the two genders are treated differently in the workplace, but whether a member of one gender is treated adversely to, or worse than, a member of the other gender because of his or her sex.  The Court thus held that Kelley had not produced evidence to support his claim that he was discriminated against because of his sex. 

As the Court determined that Kelley had failed to meet his burden of establishing sex discrimination, it concluded it was not necessary to address whether Kelley also failed to establish that the conduct was sufficiently severe or pervasive so as to alter the conditions of his employment.  Nevertheless, the Court noted that courts have consistently held a plaintiff cannot recover for harassment that is occasional, isolated, sporadic or trivial.  Instead, a plaintiff must show a concerted pattern of harassment of a repeated, routine or generalized nature.  Here, the Court stated that Kelley failed to show any pervasive hostile conduct that occurred before or after the one incident involving Seaman and his co-worker. 

With regard to Kelley's retaliation claim, he argued that he suffered continuing harassment at other Conco work sites after he had companied about Seaman's conduct.  In order to establish a prima facie case of retaliation, Kelley was required to show that: (1) he engaged in a protected activity; (2) the employer subjected him to an adverse employment action; and (3) a causal link exists between the two.  The Court explained that, while mere ostracism in the workplace is not sufficient to establish an adverse employment action, workplace harassment that is sufficiently severe or pervasive may, in and of itself, constitute an adverse employment action sufficient to establish a cause of action for retaliation. 

Here, Kelley's complaint about Seaman's conduct unquestionably amounted to protected activity.  The issue was whether Conco knew or should have known of the retaliatory conduct by his co-workers and nevertheless permitted them to punish Kelley for making a complaint.  The Court found that there was sufficient evidence to raise a genuine issue of material fact as to whether Kelley's co-workers engaged in retaliatory harassment sufficient to constitute an adverse employment action.  The Court thus determined that summary adjudication of this claim was improper and reversed the trial court's ruling with regard to this claim only. 

The effect of Kelley is that plaintiffs seeking to establish a claim for same sex harassment must now show that the harassment was motivated either by sexual desire or that they were treated not just differently, but adversely to members of the other sex.  While Kelley further defines the evidentiary requirements for establishing same sex harassment claims, it does not alter an employer's responsibilities and obligations with regard to complaints of harassment or its duty to prevent harassment. 

Kelley also serves as an important reminder that employees may be able to establish retaliation claims based on the conduct of non-supervisory employees, when the employer knew or should have known of the co-worker retaliatory conduct, and either participated, encouraged or failed to prevent the conduct and even if the underlying conduct does not rise to the level of actionable discrimination or harassment. 

This article was written by Grace Chan, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore.  Ms. Chan is an Associate in the San Francisco office and can be reached at (415) 512-3000 or at

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