Kristin's Blog
New Law: Sexually Harassing Conduct no Longer Needs to be Motivated by Sexual Desire

California Legislation amended the definition of discrimination based on sex in its Senate Bill 292.  The new law provides that with respect to an employment-related sexual harassment claim made under the Fair Employment and Housing Act (FEHA), “sexually harassing conduct need not be motivated by sexual desire.” Government Code § 12940(j)(4)(C).

This amendment was triggered by a recent Appellate Court decision, Kelley v. The Conco Companies (6/6/11) — Cal.App.4th —-, 2011 WL 2177235.  In Kelly, Plaintiff, a male employee, complained that he was verbally abused by his male supervisor and co-workers, including being subjected to extremely demeaning and sexually explicit comments and gestures.  The undisputed evidence suggested that the workplace environment commonly included “sexually taunting comments by supervisors and employees . . . including gay innuendo, profanity, and rude, crude and insulting behavior.  Such comments were made both jokingly and in anger.”

The court, facing the issue of same-sex harassment as amounting to harassment “based on sex,” concluded that the conduct in the workplace was, “graphic, vulgar, and sexually explicit”; however, the Court found no evidence to conclude that those words were an expression of “actual sexual desire.”  There was no “credible evidence that the harasser was homosexual” or that the harassment was “motivated by sexual desire.”

The new bill effectively changes the outcome in Kelly.  With the amendment to Government Code section 12940(j), “’harassment’ because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” And now also includes, “[s]exually harassing conduct need not be motivated by sexual desire.”

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