Kelly

The City of Oakland (the City), Kent McNab and Richard Wirkkala appeal the judgment of the district court against them in favor of Stephen M. Kelly after a jury trial. At the center of the case is Kelly’s contention that McNab sexually harassed him. A federal right to be free of same-sex harassment in the form of a hostile environment was not established in the period 1989-1993 covered by Kelly’s complaint. We must, therefore, reverse the judgment against McNab and Wirkkala to the extent that it rests on violations of 42 U.S.C. §§ 1983 and 1985 predicated on same-sex harassment in the form of a hostile work environment. The City, however, is not entitled to qualified immunity for these violations.

Same-sex harassment in the form of a request for sexual favors on a quid pro quo basis, however, was a clear violation of federal law at all relevant times. On that basis we sustain the judgment against McNab for violations of 42 U.S.C. §§ 1983 and 1985. We also affirm the judgment of punitive damages against McNab. The general verdict of the jury embraced Kelly’s causes of action against the City under 42 U.S.C. § 2000e et seq. (Title VII) and under the California Fair Employment and…