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Sexual Threats Not Sexual Harassment
Patrick Kelley was an apprentice ironworker for The Conco Companies in Northern California. One day the job supervisor, David Seaman, told Kelley to move some iron rebar and not to mix up the pieces. However, as Kelley moved the rebar, the pieces got mixed up.

Using profanity-laced language, Seaman yelled at Kelley, ordering him to bend over and pick up the rebar. Seaman also called Kelley a "bitch." Later that day, Seaman came up to Kelley while Kelley was bent over, and again called him a "bitch." Seaman also said Kelley had a "nice ass," that he would make Kelley "his bitch" and "turn [Kelley] out," and graphically stated that he would sodomize Kelley in multiple ways.

Kelley complained about Seaman to a Conco manager and was assigned to another worksite. However, word of Kelley's complaint spread, and other co-workers began to taunt Kelley. For example, co-workers called him a "bitch," a "narc," and a "snitch," and threatened that he might "get his ass beat after work." A supervisor was in earshot, but ignored the comments.

Although Kelley complained repeatedly about the misconduct, nothing was done. On one occasion, a manager told Kelley, "That's just the way these guys are." Still, the insults continued to follow Kelley at other Conco jobs. Eventually he resigned and sued Conco for sexual harassment and retaliation.

The Court dismissed Kelley's harassment claim. To win his case, the Court explained, Kelley not only had to show he "was subject to unwelcome sexual harassment [but also that] the harassment complained of was based on sex."

"It is the disparate treatment of an employee on the basis of sex – not the mere discussion of sex or use of vulgar language – that is the essence of a sexual harassment claim," the Court wrote. "The mere fact that harassment has sexual content is insufficient to establish that it constituted discrimination because of sex."

"Kelley offers evidence of workplace hostility and aggressive and threatening comments..., but makes no showing of any sexually discriminatory animus for that behavior," the Court concluded. "While Kelley was undoubtedly subjected to grossly offensive comments and conduct, he did not [suffer] discrimination in the workplace because of his gender."

Even so, the Court ruled that Kelley could sue for retaliation. "An employer may be held liable for co-worker retaliatory conduct if the employer knew [of it] and ... failed to take reasonable actions to end the retaliatory conduct," the Court declared. [Kelley v. The Conco Companies (CalApp 2011) no. A126865]

    Update: In 2013, California enacted SB 292, which overturned this decision and clarified that sexually harassing conduct need not be motivated by sexual desire.
For information on this topic, request:
5900 Overview of Sexual Harassment
5905 Sexual Harassment Based on Hostile Environment
9518 Anti-Retaliation Policy

Supervisor Anti-Harassment (AB1825-11H)

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