On August 12, 2013, Gov. Jerry Brown signed into law S.B. 292, amending section 12940 of California’s Fair Housing and Employment Act (“FEHA”), providing that individuals who bring sexual harassment lawsuits under the act no longer need to prove that the harassing conduct was “motivated by sexual desire.” The bill takes effect on January 1, 2014, and overturns the controversial California Court of Appeal decision, Kelley v. The Conco Cos., 196 Cal.App.4th 191 (2011), which had been interpreted to require plaintiffs to show that an alleged harasser’s conduct was sexually motivated in order to bring a successful same-sex harassment claim. The bill’s author, Senate Majority Leader Ellen Corbett, and other critics complained that the Kelley decision confused FEHA’s sexual harassment law, eroded protections against sexual conduct that can lead to hostile work environments, and caused California law to be misaligned with the principles promulgated by the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Svcs., Inc. and its progeny. The FEHA, which bars discrimination and harassment in employment on the basis of sex, race, religious belief and other protected categories, now clarifies that a harassment victim’s sexual orientation, or the sexual intent of the victim or harasser is no longer relevant to the determination of sexual harassment.
Employers with employees in California should consider updating their employee handbooks and/or conducting sexual harassment training to ensure they convey that sexually related conduct, including statements, images and gestures, are prohibited in the workplace, regardless of the motivation, intent or desire of the person engaging in such conduct.