New Insight on Same Sex Harassment
Applying the U.S. Supreme Court’s long-standing analysis of same sex harassment provided in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998), a California Court of Appeal examined what it means to suffer harassment that amounts to discrimination by members of the same sex. In Kelley v. The Conco Companies, apprentice ironworker Patrick Kelley was indisputably subjected to an obscenity laced, sexually charged tirade by a supervisor and intermittent sexually demeaning comments and threats of physical violence by co-workers in retaliation for complaining about the supervisor. Kelley was reassigned and eventually suspended by his union for an unexcused absence. After his six-month suspension ended, Conco did not re-hire Kelley.
The appellate court’s ruling focused on what it means for discrimination to be based on sex. “The difficulty arises in determining when same-sex harassment amounts to discrimination because of sex.” While acknowledging that the words directed at Kelley were “graphic, vulgar, and sexually explicit” and “crude, offensive and demeaning,” the statements were neither an expression of sexual interest, nor a comment on Kelley’s actual or perceived sexual orientation. More bluntly, when a supervisor refers to a male employee as a “bitch” it is not kind, but it is not harassment in the absence of sexual interest or animus.
Nonetheless, they Kelley decision is hardly an unambiguous “win” for employers. The court held that Conco’s eventual failure to re-hire Kelley after his suspension was not retaliatory. But tolerance by Conco of the occasional sexual comments and threats of violence by co-workers that followed Kelley’s complaint may in and of itself constitute an adverse employment action sufficient to satisfy the requirements for a retaliation cases. The court explicitly ruled that “an employer may be held liable for coworker retaliatory conduct if the employer knew or should have known of coworker retaliatory conduct and either participated and encouraged the conduct, or failed to take reasonable actions to end the retaliatory conduct.”
Employers must take care to remind the employees with knowledge of complaints that retaliation is strictly prohibited, and then must follow-up to insure that the employees take the warnings seriously.
Let’s be reminded that this is the mandatory year for the sexual harassment training for employers who have more than 50 employees.
