Kelly v. The Conco Companies

On Monday, Governor Jerry Brown signed a bill stating that sexually harassing conduct need not be motivated by sexual desire. The bill, which will take effect January 1, 2014, is an overreaction to a state court of appeals opinion that I wrote about two plus years agoKelley v. The Conco Companies.

As I’ve discussed before, harrassment is against the law because it’s a form of discrimination. Just as you can’t demote, refuse to hire, or fire someone because of a protected category, you can’t create a hostile work environment for such a reason. In the context of sexual harassment, courts (including the U.S. Supreme Court in Oncale v. Sundowner (pdf) and the California Supreme Court in Lyle v. Warner Bros. Television Productions (pdf)) have stressed that the harassment, to be actionable, must be “because of sex.” Lose that requirement, the courts warned, and laws against harassment would go from protecting against a form of discrimination to becoming “a general civility code for the American workplace.”

Governor Brown and the state legislature have ignored that warning in enacting SB 292, which specifies, “for purposes of the definition of harassment because of sex under [the Fair Employment and Housing Act], that sexual harassing conduct need not be motivated by sexual desire.” The analysis of the bill (SB 292 Analysis) expressly states that it’s in reaction to Kelley. But that opinion never said that sexually harassing conduct had to be motivated by sexual desire. Still, again according to the analysis, the author [Senate Majority Leader Ellen Corbett] reports that the Kelley opinion is being construed to require a plaintiff to show sexual desire to prevail on any sexual harassment claim.”

Construed by whom? In what context? More importantly, why do we need a bill objecting to this undisclosed misinterpretation of a case reiterating the various, long-established ways to prove harassment was “because of sex”? And did anyone ask these questions in passing this bill unanimously in both houses?

SB 292 will lead to more sexual harassment claims surviving summary judgment and going to trial. That’s undoubtedly what the bill’s sponsors — the California Employment Lawyers Association (which, despite the breadth of the name, is comprised exclusively of lawyers for employees) — had in mind. To lessen the risk, employers can take the following steps:

  • Ensure that personnel policies prohibit not just harassment, but also vulgar language, sexual innuendo, sexual propositions, threats, and bullying.
  • Be vigilant in enforcing those policies.
  • Respond to complaints of bullying, crude behavior, and mistreatment that isn’t necessarily “because of sex” as you would to a sexual harassment complaint. This means you need to conduct (or have someone qualified conduct) a prompt, fair, and thorough investigation and, where necessary, take steps reasonably calculated to stop the behavior.

Welcome to life under a General Civility Code.


As I’ve said before, there’s a difference between a hostile work environment and a work environment that’s hostile.  In the employment law context, it’s not enough that you have to deal with rude and obnoxious people at work.  (For purposes of this discussion, we can ignore the fact that your obnoxious coworker will hire a more obnoxious lawyer to argue that he has an etiquette recognition disorder that has to be accommodated under state and federal disability law.)  To have a claim for a hostile work environment, you need to be subjected to abuse in the workplace because of gender or race or age or some other protected category.  That’s because the laws against harassment are part of the laws against discrimination in general.  So harassment in the workplace is illegal when it’s a form of discrimination.

A California state court of appeal decision earlier this month, Kelly v. The Conco Companies, illustrates this distinction.  Kelly, a male apprentice iron worker, was barraged with sexually demeaning comments and gestures and physical threats from a male supervisor and male co-workers.  This included frequent use of the “f-word,” calling him a bitch, telling him he had a “nice ass,” and an array of more graphic suggestions that you can read about in the opinion.  (We’re trying to be one of the few kid-friendly management-side California employment law blogs.)

In many respects, the facts are similar to Oncale v. Sundowner Offshore Services, Inc., a 1998 Supreme Court decision that addressed when male-on-male harassment was actionable.  Drawing on Oncale, the California court reiterated that the laws against discrimination were not intended to become a “general civility code for the American workplace.”  Absent that evidence, the court ruled that Kelly could not proceed with a sexual harassment theory.

Employers have reason to be thankful any time a court recognizes that bad behavior isn’t always legally actionable.  The concern now is whether proposed laws against “bullying” will be used to create the feared “general civility code for the American workplace.”