Fenwick Employment Brief - September 2013: New California Law Clarifies that "Sexual Desire" not required for Sexual Harassment Claims

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As mentioned in last month’s FEB, California recently enacted a new law clarifying that a plaintiff alleging sexual harassment is not required to show that the alleged harassment was motivated by sexual desire. Governor Jerry Brown signed the bill on August 12, which becomes effective on January 1, 2014.

The new law overrules the 2011 decision by a California Court of Appeal in Kelley v. The Conco Companies to the extent that case has been construed to require a plaintiff in a same-sex sexual harassment dispute to show that the harassment was motivated by sexual desire. While the Kelley decision was nuanced and determined that the plaintiff did not suffer sexual harassment because he could not show that he was treated adversely as compared to members of the female gender, the decision has been interpreted as requiring a showing of sexual desire or intent to prevail on a FEHA same-sex harassment claim.

The recent amendment to the definition of sexual harassment resolves any ambiguity created by the Kelley decision, and makes clear that a showing of sexual desire is not an essential element of a claim of sexual harassment. To establish an inference that an alleged harasser’s conduct is sexual in nature, a plaintiff can also produce evidence that the alleged harasser is motivated by general hostility towards the particular gender of which plaintiff is a member or through comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. While the new amendment doesn’t necessarily change existing law, it does re-emphasize the importance of eradicating completely all forms of inappropriate behavior, conduct and comments in the workplace.

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