In a same-sex sexual harassment case, does the plaintiff need to prove that the alleged harasser's conduct was motivated by sexual desire?  Under SB 292, a law signed by Governor Brown a few days ago, the answer in California is "no."   

A key question when dealing with a sexual harassment claim under California's Fair Employment and Housing Act ("FEHA") is whether the harassment was "because of sex."  Relying on the United States Supreme Court's ruling in Oncale v. Sundowner Offshore Services, Inc., a California appellate court held in Kelley v. The Conco Companies that proof of sexual desire was required in order to allege a same-sex sexual harassment claim.  In Kelley, the plaintiff, a male apprentice iron worker, suffered sexually-explicit and homophobic insults and threats from male coworkers.  The Kelley court found that the conduct, while abusive, was not "because of sex" under FEHA, because the coworkers were simply using sexually-explicit language but were otherwise not acting out of sexual attraction towards the plaintiff.  

Five years before Kelley, a different California appellate court in Singleton v. United States Gypsum Company had reached the opposite conclusion, holding that plaintiff only had to prove that he or she was treated differently because of gender and that proof of sexual motivation was unnecessary.  While the Court in Singleton also analyzed Oncale, it found that the case did not stand for the proposition that a plaintiff had to present proof that the harasser was motivated by sexual desire.

SB 292 resolves the split in the California appellate courts by explicitly overturning Kelley and clarifying that sexual harassment under FEHA does not require proof of sexual desire towards plaintiff. Employers with operations in California should take note, however, that while SB 292 is aimed at overturning the decision in Kelley, it goes beyond that decision as it encompasses all types of sexual harassment, same-sex as well as different-sex. This new law is a reminder that effective policies that comply with state and federal law, and training of supervisors as required by California law, is more important than ever.