Yesterday Governor Brown signed into law SB 292, by Senator Ellen Corbett, which amended the definition of harassment because of sex in the Fair Employment and Housing Act to specify that sexually harassing conduct need not be motivated by sexual desire.

The stated intent of the bill is to overturn the decision in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), and “clarify” that establishing sexual harassment under FEHA does not require proof of sexual desire toward the plaintiff.  According to the author, the appellate court in Kelley “created confusion” by directly contradicting a sister court’s ruling in Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547 (2006), and ignoring key provisions of the leading U.S. Supreme Court decision on same-gender sexual harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

The Kelley court had found that, because there was no evidence that the heterosexual male supervisor and coworkers sexually desired the male plaintiff, the plaintiff failed to prove sexual intent—the first of three evidentiary routes to prove a defendant’s harassing conduct was of a sexual nature (the other two are general hostility by the defendant toward a particular sex, of which the plaintiff is a member, and comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace).  In Kelley, the defendant and coworkers used language that “was graphic, vulgar, and sexually explicit; and made statements that literally expressed sexual interest and solicited sexual activity.  Despite this, the court found there was no ‘credible evidence that the harasser was homosexual’ or that the harassment was ‘motivated by sexual desire.’”  While this sexual intent route was not dispositive in the Kelley case, (the third route—lack of showing of comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace—was), Senator Corbett reported, as justification for this legislation, that the Kelley opinion is being construed to require a plaintiff to show sexual desire to prevail on any sexual harassment claim. 

The new language: This bill only adds the following clause (in bold) to Government Code section 12940(j)(4)(C): “For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.

Effective date: January 1, 2014.