Unlawful Harassment Doesn’t Turn on Sexual Desire
Posted August 19, 2013

On August 13, 2013, Governor Jerry Brown signed into law SB 292, which confirms that liability for sexually harassing conduct does not turn on whether the harasser actually desires the victim. This bill is the latest change in a litany of recent amendments to the Fair Employment and Housing Act (FEHA), and amends the language of California Government Code section 12940 subdivision (j)(4)©, defining harassment under FEHA. The amendment adds the following statement, “Sexually harassing conduct need not be motivated by sexual desire.”

SB 292 was brought specifically to counteract the holding of Kelly v. Conco Companies (2011) 196 Cal.App.4th 191 and its subsequent progeny. In Kelly, a same-sex sexual harassment (hostile work environment) case, the Court stated that the plaintiff failed to prove sexual intent because there was no evidence that a heterosexual male supervisor and coworkers sexually desired the male plaintiff. Although the Kelly Court dismissed the plaintiff’s sexual harassment claim on other grounds, proponents of SB 292 argued that the Kelly decision created a false standard for same-sex harassment cases – in particular, that in order to survive summary judgment, a plaintiff must prove that the harasser harbored a sexual desire for the plaintiff. This amendment establishes concretely that sexual intent or desire is not the sole method of proving sexual harassment. Instead, it focuses our attention on the more relevant inquiry in such cases; i.e., whether a harasser targeted a victim on the basis of gender.

This new law is consistent with the content of LightGabler’s harassment training programs, where we distinguish between “sexual” harassment (harassment based on sexual desire) and “gender” harassment (harassment based on the victim’s gender, with or without any sexual desire or sexually-based intent). Employers should make sure that managers and staff employees alike understand that harassment may be based upon a myriad of factors, whether or not sexual desire is present.

For questions about the new law or any other employment law issue, please contact any of our employment attorneys at LightGabler.