Governor Brown signed Senate Bill 292 this week, amending the Fair Employment and Housing Act to allow an employee claiming sexual harassment to prevail without having to show that the allegedly harassing conduct was motivated by the harasser’s “sexual desire.” S.B. 292 was authored by Senate majority leader Ellen M. Corbett and principally sponsored by the California Employment Lawyers Association, an organization of attorneys that represent workers in employment cases.
The bill set out to eviscerate a June 2011 California Court of Appeal decision which rejected a male ironworker’s sexual harassment claim despite evidence that he was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor.” The bill’s supporters felt that Kelley v. The Conco Cos., 196 Cal. App. 4th 191 (2011), “confused sexual harassment law” and weakened workers’ protections under the FEHA.
In Kelley, the court acknowledged that the supervisor’s comments were “graphic, vulgar, and sexually explicit” and, when interpreted literally, “expressed sexual interest and solicited sexual activity.” Nonetheless, the court affirmed dismissal of the sexual harassment claim because the plaintiff could not present evidence that “the harasser was homosexual” or “motivated by sexual desire.”
Effective January 1, 2014, SB 292 overrules Kelley by adding one sentence to the FEHA, stating that “sexually harassing conduct need not be motivated by sexual desire.” So, in future sexual harassment cases, an employee who is subjected to vulgar sexual comments or actions need not prove that the conduct was motivated by the harasser’s “sexual desire.”