FEHA Claim For Sexual Harassment Not Viable In Same Sex Incivility In Workplace.

In Patrick C. Kelley v. The Conco Companies (Cal. App. First Dist., Div. 5; June 6, 2011) 196 Cal.App.4^th 191, [126 Cal.Rptr.3d 651, 112 Fair Empl. Prac. Cas. (BNA) 1301], while working on a construction site, the plaintiff, a male, was subjected to grossly offensive, graphic, vulgar, and explicit comments about sexual acts, by a male supervisor and a male coworker filed a FEHA claim.  Summary judgment was granted because he did not produce evidence to support his claim that he suffered discrimination in the workplace because of his gender.  The Court of Appeal affirmed with regard to the sexual harassment and sexual discrimination claim, stating the sine qua non of any sexual harassment claim is that the plaintiff suffered discrimination because of sex.  The court had no difficulty applying to a FEHA claim the same standard applied by the United States Supreme Court in a Title VII claim in Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75, 81, [118 S.Ct. 998; 140 L.Ed.2d 201].  The Supreme Court found that sexual harassment within the meaning of Title VII could occur between members of the same sex as long as the plaintiff could establish that the harassment amount to discrimination because of sex. The California Court of Appeal observed that the difficulty arises in determining when same-sex harassment amounts to discrimination because of sex, and that both the U.S. Supreme Court in Oncale and the California Supreme Court in Lyle v. Warner Brothers (2006) 38 Cal.4^th 264, [132 P.3d 211; 42 Cal.Rptr.3d 2], cautioned that VII and FEHA claims should not be transformed into a general civility code in the workplace.