Court of Appeal Rejects Same-sex Harassment Claim

As stated by the court of appeal,

Patrick Kelley was an apprentice ironworker employed by respondent The Conco Companies (Conco). He complained that he was subjected to a barrage of sexually demeaning comments and gestures by his male supervisor, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor. Kelley‘s employer changed his work site to separate him from his harassers, but Kelley was later suspended by his union from its apprenticeship program rendering him ineligible for employment. After the suspension expired, he was not rehired by Conco.

Sounds like sexual harassment? Wrong. The court of appeal decided that the supervisor's verbal abuse was not truly based on Kelley's sex. Therefore, although rude, the conduct was not actionable under the Fair Employment and Housing Act:

The sine qua non of any sexual harassment claim is that the plaintiff suffered discrimination because of sex. (Lyle, supra, 38 Cal.4th at pp. 279–280; Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81 (Oncale).) ― ‗ ―The critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.‖ ‘ [Citations.]‖ (Lyle, at pp. 279–280, quoting Oncale, at p. 80.) A FEHA plaintiff must show ― ‗ ―that gender is a substantial factor in the discrimination, and that if the plaintiff ‗had been a man she would not have been treated in the same manner.‘ [Citation.]‘ [Citations.] Accordingly, it is the disparate treatment of an employee on the basis of sex . . . that is the essence of a sexual harassment claim.

The court then surveyed the law and held that sexual harassment is not actionable under FEHA unless there is some link to sexual desire, or treatment that occurs only because of the victim's sex.  That is, merely because Kelley's boss used vicious slurs against Kelley, calling him a number of names and using sexually suggestive language, the boss did so out of anger, and not sexual desire or motivation.

The court, however, revived Kelley's retaliation claim because even though Kelley did not have a viable harassment claim, he had a good faith claim of retaliation.

This case, if it stays on the books, may change some folks' understanding of what "harassment" is.  But it should not change employers' responses to the kind of conduct that occurred in the facts of the opinion, nor should employers rely on this opinion as a way to give a harasser a free pass.  Trust me, when you read the facts, you'll see what I mean.

The case is Kelley v. The Conco Companies, Inc. and the opinion is here.

Supreme Court Unanimously Limits Employers' Right to Attorneys' Fees in Discrimination Cases

In federal cases alleging discrimination, harassment, retaliation and violations of civil rights, when may a defendant employer recover attorneys' fees?  It is long settled that defendants may recover only when the plaintiff's claims are "frivolous, unreasonable or without foundation."  What about when just some of the claims are frivolous?  The Supreme Court answered that question, unanimously, with Justice Kagan writing the opinion:

Section 1988 allows a defendant to recover reasonable attorney’s fees incurred because of, but only because of, a frivolous claim. Or what is the same thing stated as a but-for test: Section 1988 permits the defendant to receive only the portion of his fees that he would not have paid but for the frivolous claim.

The Court then went on to hold that if the defendant spends fees on issues that deal with both frivolous and nonfrivolous claims simultaneously, the defendant may not recover fees:

But if the defendant would have incurred those fees anyway, to defend against non-frivolous claims, then a court has no basis for transferring the expense to the plaintiff. Suppose, for example, that a defendant’s attorney conducts a deposition on matters relevant to both a frivolous and a non-frivolous claim—and more, that the lawyer would have taken and committed the same time to this deposition even if the case had involved only the non-frivolous allegation. In that circumstance, the work does not implicate Congress’s reason for allowing defendants to collect fees. The defendant would have incurred the expense in any event; he has suffered no incremental harm from the frivolous claim. In short, the defendant has never shouldered the burden that Congress, in enacting §1988, wanted to relieve. The basic American Rule thus continues to operate.

Thus, the Supreme Court unanimously made sure that defendants will have a tough time recovering fees in cases including both frivolous and non-frivolous claims, just like the Ninth Circuit decided in Harris v. Maricopa County, which I discussed  here. Yes, I thought the Court of Appeals was out to lunch. I was wr-wr-wr... incorrect.  No wonder I don't have a vote on either court.  My opinion, though, remains the same. The Supreme Court joins the Ninth Circuit in making it very difficult for defendants to recover attorneys' fees in frivolous discrimination cases, unless the case is entirely frivolous. There is little incentive for the plaintiff to dismiss the frivolous component.

The Supreme Court decision is Fox v. Vice and the opinion is here.