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This isn’t harassment??!!

June 9, 2011

California courts generally are pretty employee-friendly.  But a new case, Kelley v. The Conco Companies, has me scratching my head. Warning — some graphic language ahead.

Kelley was hired as an apprentice ironworker at Conco, a large construction company.  At his first jobsite, his supervisor told him to “bend the fuck over and pick that shit [some materials] up.  Pick that shit up, bitch.”  Later, while Kelley was bent over doing another task, the supervisor came up behind him and called him a “bitch” and a “fucking punk.”  He said Kelley had a “nice ass,” he wanted to “fuck [Kelley] in the ass,” Kelley’s pants “made [his] ass look good,” Kelley would “look good in little girl’s clothes,” he would “fuck the shit out of [Kelley’s] ass,” he would “fuck [Kelley] better than [Kelley’s] old lady,” he would make Kelley “his bitch,” he would “cum all over [Kelley’s] ass” and he would “turn [Kelley] out.”  On another task requiring Kelley to kneel down, the supervisor said, “That’s where you belong[,] on your knees.”  Kelley said that a coworker, who he identified only as a Hispanic male from Sacramento, “got in my face” and said he was going to “make me suck [the supervisor’s] dick” while he watched.

Kelley requested and was granted a transfer to another job site, but the previous incidents apparently followed him.  His coworkers called him a “bitch,” “faggot,” and “narc” or “snitch” for complaining and two of them told him he would be lucky if he did not get his ass beat after work.  At other sites, he heard remarks daily about what had happened with his first supervisor.  He was called “punk bitch,” “snitch” or “fag,” and people would “get in his face” and would threaten to jump him after work.

Kelley complained on multiple occasions, but the behavior continued.  None of the other employees were criticized or disciplined.  One higher level manager responded to Kelley’s complaints  by saying, “Well, that’s the way the trade is, man.  That’s just the way these guys are.”

Surprisingly, the court held Kelley’s proof of harassment was insufficient.  The issue wasn’t whether the statements themselves had been made, or whether they were humiliating.  Instead, Kelley’s problem was that he couldn’t prove they were made to him “because of [his] sex.”  Said the court:

The statements made to Kelley were crude, offensive and demeaning, as it was evident that they were intended to be.  No evidence, however, was presented from which a reasonable trier of fact could conclude that they were an expression of actual sexual desire or intent by [the supervisor], or that they resulted from Kelley’s actual or perceived sexual orientation.  The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment.

Any HR professional or competent employment lawyer would tell the employer here that it needs to clean up its act or face significant liability.  The kind of conduct Kelley experienced is something that has no place in any worksite.  Any jury hearing this kind of evidence is going to be inclined to award damages to a plaintiff, and an appeal from such a verdict would be much more difficult.  (Indeed, the employer’s victory on harassment may be pyrrhic, because the court allowed Kelley’s retaliation claims — based upon his coworkers’ statements after Kelley complained of the first incident with his supervisor — to proceed to trial.)

Employers:  If this kind of $#!+ is happening in your offices, make sure you stop it immediately.  The Kelley case is destined to be one of those cases that is always distinguished and never followed.

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One Comment
  1. Great post! I’m involved in making documentaries and hosting blogs etc about the struggle to stop workplace bullying. I can only imagine what it will be like since the proposed legislation insists that plaintiffs also prove malice. And, includes a $25K cap on emotional distress. – Beverly Peterson

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