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California law clarifies that employees need not show sexual harassment was motivated by sexual desire

By Pamela Wolf, J.D.

On August 12, California enacted a new law clarifying that for purposes of claims filed under the California Fair Employment and Housing Act (FEHA), a plaintiff need not show that sexually harassing conduct was motivated by sexual desire.

The legislation (SB 292) was introduced for the express purpose of overturning a California Appeals court decision, Kelley v. Conco Companies, 196 Cal.App.4th 191 (2011), which had been construed to require that a plaintiff must show sexual desire on the part of the alleged harasser in order to succeed on a same-sex harassment claim.

The bill’s author, California Senate Majority Leader Ellen M. Corbett (D-East Bay), pointed out that the Kelley decision had directly contradicted a sister appeals court ruling and “ignored key provisions of the leading [U.S.] Supreme Court decision on same-gender sexual harassment, Oncale v. Sundowner Offshore Services, Inc. (1998).” As a result, there was confusion as to what plaintiffs were required to show in same-sex harassment claims asserted under the FEHA. “This bill would overturn the decision in Kelley … and clarify that sexual harassment under [FEHA] does not require proof of sexual desire towards the plaintiff,” Corbett said.

When the legislation was signed into law, Corbett quickly issued a statement: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”