Sexual Desire Is No Longer a Necessary Element of a California Sexual Harassment Claim
In August 2013, Governor Jerry Brown signed into law Senate Bill 292, strengthening the rights of sexual harassment victims. Equally important, the law clarifies a legal question that emerged from a 2011 California Court of appeals case — whether sexually harassing conduct under the Fair Employment and Housing Act (FEHA) needs to be motivated by sexual desire.
California Court of Appeals rules that sexual harassment unmotivated by sexual desire is not actionable
During Patrick Kelley’s first week as an ironworker, his supervisors and coworkers lambasted him with offensive and sexually explicit remarks. Kelley’s supervisor told him that he wanted to sodomize him. A co-worker said that he would force Kelley to perform oral sex on the supervisor. Kelley complained to management, and the supervisor refrained from further hostile behavior. However, co-workers continued to harass Kelley with outrageous name-calling. Kelley was transferred to other sites, but the verbal comments continued, and Kelley was told that management could not stop it because this is the way guys behave.
Kelley sued, claiming illegal sexual harassment and retaliation. The California Court of Appeals decided that without evidence showing that the supervisor’s behavior was motivated by sexual desire, Kelley could not prove that the behavior constituted sexual harassment. The court held that Kelley did make out a retaliation claim because the co-workers’ bullying and verbal harassment constituted a hostile work environment.
The California legislature responds
State Senate Majority Leader Ellen M. Corbett introduced Senate Bill 292 to clarify the confusing rule of law created by the court’s decision in Kelley. The statute makes clear that sexually harassing conduct need not be motivated by sexual desire to be categorized as sexual harassment under FEHA. Employers need to update their human resources departments about sexual harassment policies, because the law goes into effect January 1, 2014.
It is illegal to harass employees in the workplace because of sex. Following are examples of violations of California law:
- Physical touching or impeding
- Making sexual advances or propositions, physically or verbally
- Proposing employment advances for sexual acts
- Displaying sexually explicit objects, cartoons or pictures
- Making sexually offensive comments and using degrading words
FEHA requires employers to take proactive measures to prevent sexual harassment through posting signs at work and educating workers about the law.
If you suffered sexual harassment at work, contact an experienced Los Angeles sexual harassment attorney to discuss the merits of your case.