A new law (S.B. 292) amends the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not need to be motivated by sexual desire and suggests it can be motivated by any number of factors, including lust or hostility. The law is effective immediately. Consequently, employees who are victims of hostile work environment sexual harassment will have greater protection.
The law was passed in response to a recent California Appellate Division case, Kelley v. Concho Companies, (1st Dist. 2011) 196 Cal. App. 4th 191, holding that in order for conduct to be considered sexual harassment, it must be motivated by sexual desire. The court found that even though a homosexual employee was subject to both physical and verbal conduct that was graphic, vulgar and sexually explicit, expressed sexual interest and solicited sexual acts, the employee failed to prove that the harassing supervisor was a homosexual or harbored sexual desire for the employee. Because the decision focused only on the intent of the harasser, it essentially weakened the available protections against sexual harassment and a hostile and abusive work environment.
The author of the new law, Senate Majority Leader Ellen M. Corbett, explained that it "ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law". She further noted the importance of this legislation as it "protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation."
Based on this new law, California employers should be aware that employees who experience a hostile and abusive work environment, consisting of sexual advances, comments or innuendos that are severe or pervasive enough to alter the terms and conditions of their employment, will be protected by the FEHA even if the harasser lacks sexual desire. Employers should make sure to train all employees and supervisors on the requirements of this new law and incorporate same into their sexual harassment policies. Further, employers should be proactive and take steps to prevent and respond to harassment occurring in the workplace, even if the employer knows that the harasser has no sexual desire for the victim.