Joseph Ainley on Kelley v. Conco Companies

Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

This interesting and recently decided case clarifies the distinction between obnoxious and defensive behavior on the job, which is not actionable, and sexual harassment in the workplace, which is actionable.  The distinctions are subtle and legalistic.  There is no doubt that the plaintiff in this case suffered greatly at the hands of his abuser, and yet he had no remedy under Government Code § 12940 (the Fair Employment and Housing Act).  This is the type of cutting-edge analysis that attorney Joseph Ainley applies to every case based upon developments in the law as they occur.

In Kelley, plaintiff was an apprentice iron worker assigned to a specific job site operated by his employer, Conco.  For reasons unknown to him, plaintiff became the object of hostility and abuse from his supervisor, a man named Seaman.  On one occasion, Seaman told Kelley to move some rebar and not to mix up pieces of different lengths.  Kelley apparently failed in this task and suffered abuse from Seaman, who called him a “bitch” and a “f**cking punk.”  He said Kelley had a “nice ass” and he wanted to “f**k [Kelley] in the ass,” Kelley’s pants “made [his ass] look good,” Kelley “would look good in little girl’s clothes,” he would “f**k the shit out of [Kelley’s ass] …”  The litany of abuse like this in the case was detailed in paragraphs and was shocking in its strangeness and intensity.

Plaintiff brought suit, alleging sexual harassment in violation of Government Code § 12940.  Specifically, Kelley alleged that he was being sexually harassed on the job by his supervisor, Seaman.  The court, while agreeing that Seaman’s conduct was unacceptable, found that there was no cause of action under the Government Code.  First, the court analyzed whether plaintiff had suffered “discrimination” based on sex.  In that regard, the court required plaintiff to show that had he not been a man, he would have not been treated in the same manner.  In this case, the court concluded that although there was harassment, there was no evidence that the harassment was caused by the fact that Kelley was a man.  In other words, there was no evidence that the abuser was abusive to Kelley on the basis of the fact that he was a man rather than a woman.  As the court said: “While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not produce evidence which would support a claim that he suffered discrimination in the workplace because of his gender.” Id. at 207.

The court next turned to whether Kelley had suffered “severe and pervasive harassment” in the workplace sufficient to allege a cause of action for sexual harassment.  The court found that the “harassment” was not essential insofar as the comments were intended to be offensive, demeaning and hostile.  The court found that they were not “sexually motivated or otherwise, by Seaman or by any other supervisor.”  In other words, the court was willing to consider the comments made by the plaintiff’s supervisors to be merely offensive, harsh and unpleasant “rough language” which is part and parcel of the rough work environment of an iron worker.  The court went on to explain, rather prissily, that “to establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff must show that [he] was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of [his] employment and create a hostile or abusive work environment.” [citations omitted.]  Here, the court essentially held that plaintiff could not state a claim because the harassment was insufficiently severe and was not “sexually motivated.”  Reading between the lines, the court essentially made a policy judgment.  That is, that no matter how offensive language might be, if it is made by a member of one sex to another and intended as insulting and demeaning rather than as a demand, solicitation or request for sexual favors, the conduct does not rise to the level of sexual harassment for purposes of liability under FEHA.

This is a conservative ruling and appears clearly designed to distinguish unpleasant workplace disputes in which facially sexual insults are exchanged but where the intent is to insult rather than to seek some sexual favor or accommodation.  In a nutshell, the ruling holds that employees may be as rude as they like to one another, so long as the behavior does not constitute a genuine sexual advance.  Given the facts of this case, however, one would imagine that had Kelley been a woman instead of a man, the result would be very different.  It is perhaps only that distinction that prevented Kelley from obtaining a recovery.

Quite frankly, we disagree with the holding of this case.  The language used is clearly sexually charged and displayed what any reasonable psychologist would call homoerotic tendencies on the part of Seaman.  Kelley suffered severe depression as a result of the verbal assault, and it seems odd that the defendant should escape liability based upon the court’s, perhaps outdated, notion that men who state a sexual desire for another man are simply jousting rather than expressing a desire for sex with the victim of the harassment.  Further, the notion that the language and behavior of Seaman did not amount to “severe and pervasive” behavior is remarkable.  The transcript in full is truly shocking in the vulgarity of the language and the use of jailhouse argot.

Nevertheless, this case indicates a continued conservative trend in the law towards limiting employers’ liability based on violations of FEHA.  As the window of liability closes, it is ever more important to frame the case properly to survive challenges such as those made in this case.  At  the law offices of Joseph Ainley and Ainley Law, we pride ourselves in being current with all relevant case law and that we are able to frame cases in such a fashion and not to fall victim to badly reasoned precedent.