With the signature of Gov. Jerry Brown, California has enacted an amendment to the state’s employment discrimination laws that clarifies that sexual harassment does not need to be motivated by sexual desire.
The clarification – which takes effect Jan. 1, 2014 – comes in response to a 2011 decision from an appellate court in Kelley v. The Conco Cos., 192 Cal. App. 4th 191. That case involved a homosexual male apprentice ironworker who was harassed by his male supervisor and coworkers with sexually demeaning comments and gestures. Even though the court found that he was subject to harassment, it granted the employer’s motion for summary judgment because Kelley failed to establish that his supervisor was gay or harbored sexual feelings for him.
Senate Bill 292, which amends the Fair Employment and Housing Act (FEHA), “ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law,” Senator Ellen M. Corbett, who sponsored the legislation, said in a statement. Specifically, Section 12940(j)(4)(C) of the FEHA now includes the sentence “Sexually harassing conduct need not be motivated by sexual desire.”
Legislators in Pennsylvania also recently turned their attention to state discrimination laws, with a bipartisan bill introduced that would add “sexual orientation, gender identity or expression” to the list of protected classes under that state’s Human Relations Act.
As defined, “sexual orientation” means “actual or perceived heterosexuality, homosexuality or bisexuality” and “gender identity or expression” means “actual or perceived gender identity, appearance, behavior, expression or physical characteristics whether or not associated with an individual’s assigned sex at birth.” According to one of the bill’s sponsors, Sen. Patrick Browne (R-Lehigh), the legislation would keep the state “competitive in attracting business and talent.”
Why it matters: California’s SB 292 overturns the Kelley decision and clarifies that a plaintiff is not required to prove that an alleged harasser was motivated by sexual intent or desire. In a sexual harassment suit the focus is not on the intent of the alleged harasser but on the employee’s allegations of a hostile work environment. Pennsylvania’s proposed legislation, if passed, would make it the 22nd state (plus Washington, D.C., and various municipalities) to have enacted protection for gender identity or sexual orientation.