Sexual Harassment Claims Don’t Require Showing of Sexual Desire

On August 12, 2013, Governor Brown signed SB 292. The bill adds the following sentence to the California Fair Employment and Housing Act: “Sexually harassing conduct need not be motivated by sexual desire.” The stated purpose of the new sentence is to overturn Kelley v. The Conco Companies, 196 Cal. App. 4th (2011). Apparently, the California Employment Lawyers Association (CELA aka plaintiffs’ lawyers) was concerned that the Kelley decision might make it more difficult for plaintiffs to prove claims of sexual harassment. Giving the CELA the benefit of the doubt, it is at least arguable that the Kelley decision conflicted with prior case law and the commonly understood rule that proof of sexual desire was not required. So, if you have money and influence like the CELA, why not make sure the law is clearly in your favor. It has been long understood that to prove a defendant’s harassing conduct was because of sex, the plaintiff had to produce evidence of: (1) sexual intent or desire on the part of the defendant toward the plaintiff; (2) general hostility by the defendant toward a particular sex, of which the plaintiff is a member; or (3) comparative evidence about how the alleged harasser treated members of the sexes differently at work. See, e.g., Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80-81 (1998). The CELA was concerned that the Kelley decision reduced the three different methods of proof to the single method of sexual intent or desire, thereby making it more difficult for plaintiffs to prove their claims. The legislative history of SB 292 clarifies and reaffirms that hostile work environment and quid pro quo sexual harassment claims may be proven by evidentiary routes other than the alleged harasser’s sexual intent or desire. The bill does not preclude a plaintiff from proving sexual intent or desire. It merely reiterates that sexual intent or desire is not the sole method of proving sexual harassment. Likewise, the bill does not create a new theory of employer liability or lessen the plaintiff’s burden of proving each required element of a sexual harassment claim.