A California Court of Appeal recently ruled there has to be evidence of sexual desire where someone is complaining of sexual harassment at work by a member of the same sex. This is contrary to other cases that hold that no sexual desire is necessary. Additionally, consideration of whether the perpetrator had a sexual desire toward the target is not part of the analysis in harassment complaints against the opposite sex. 

In Kelley v. The Conco Companies, 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, and another co-worker made various threats about forcing sexual acts on Kelly. Kelley complained to the job site’s Field Safety Manager.  However, the behavior toward Kelley worsened, even after he was assigned to a different job site.  Kelley continued to complain to supervisors and was essentially told that there was nothing they could do for him. 

Kelley sued Conco for, among other things, sexual harassment in violation of the Fair Employment and Housing Act (FEHA).  The court considered whether extremely violent and sexually explicit comments made by a male supervisor to a male subordinate employee were sufficient to establish sexual harassment.  The court held that Kelley could not pursue his sexual harassment claim without evidence that Seaman was motivated by sexual interest in Kelley.  There was no evidence, however, to conclude that Seaman made an expression of actual sexual desire or intent, or that Seaman was motivated by Kelley’s actual or perceived sexual orientation.

Although the Kelley decision may be used as a defense in the event of litigation against same sex harassment (i.e., to argue that there can be no claim for sexual harassment unless there is evidence of sexual desire), public agencies can better avoid the cost of lawsuits and risk of liability by implementing and enforcing a zero tolerance harassment policy, without regard to whether the perpetrator harbored any sexual desire for the target of the harassment.  While some harassing behavior may not be sufficiently severe or pervasive to violate the law, it can result in increased costs to the employer and a toll on the employees due to disruption in the workplace, turnover, loss of productivity, absenteeism, and low morale.

There are a couple of significant benefits to the zero tolerance approach.  For example, prohibiting inappropriate behavior allows a public agency the opportunity to take corrective action at an early stage, thus preventing more severe and potentially unlawful conduct from  developing.  In addition, an employer can find that an employee has violated its policy without inadvertently admitting that the conduct violated the law.

The Kelley decision represents a substantial departure from the previous case law relating to sexual harassment complaints against members of the same sex.  It remains to be seen how broad of an application and what kind of impact the Kelley decision will have.  In the meantime, public agencies should continue to adopt and enforce zero tolerance policies with the aim of maintaining harmonious work environments, and preventing liability and litigation.