California S.B. 292: Sex-Based Harassment Claims No Longer Require Sexual Desire Element

by Daniel Clark

In response to Kelley v. Conco Companies, in which the California Court of Appeal affirmed the dismissal of a same-sex sexual harassment claim for lack of proof that the harassment was “an expression of actual sexual desire or intent,” the state legislature approved and Governor Brown signed S.B. 292, which will revise California’s Fair Employment and Housing Act (“FEHA”) to define sexual harassment to state that “[s]exually harassing conduct need not be motivated by sexual desire.” The text of S.B. 292 can be found here.  This important distinction now codified and to become effective January 1, 2014, appropriately voids an invalid definition of sex-based discrimination, resolving a California appellate court split that embodied a semantic conflict of interpretation.  In California, “sex-based discrimination” now means that, as in the Kelley case, a man who harasses another man because the harassed does not fulfill the harasser’s heuristics of a man, violates the law.

In Kelley, the impetus case for S.B. 292, a male union apprentice ironworker was subjected to sexually explicit comments regarding his body and threats of sexual acts by a supervisor.  By any standards, the supervisor used unacceptable language, but the question before the court was whether this constituted “sex-based discrimination.”  Interpreting the meaning of “sex-based discrimination” is the key.  The crucial sentence of the Kelley holding was that no evidence “was presented from which a reasonable trier of fact could conclude that they were an expression of actual sexual desire or intent by Seaman, or that they resulted from Kelley’s actual or perceived sexual orientation.”  This line betrays the fatal misinterpretation of the basic meaning of “sex-based discrimination.”  The Kelley court utilized an interpretation of “sex-based discrimination” relying on its reading of the United States Supreme Court’s holding in Oncale v. Sundowner Offshore Services, Inc., and reasoned that “sex-based discrimination” is shown most readily by a manifestation of a desire of the harasser (e.g. Seaman) to have sex with the harassed (e.g. Kelley).  The court affirmed that because there was no evidence that Seaman wanted to have sexual contact with Kelley, Kelley’s claim failed as a matter of law as the adverse treatment was not disparate based on Kelley’s gender.

By making clear that even if language, including the kind of sexually explicit language Seaman hurled at Kelley, is not proof of a desire of the harasser to have sex with the harassed, it may still constitute sex-based discrimination, California took a large step toward better protection for workers.  Under the new law, California will proceed with an interpretation of “sex-based discrimination” that means that harassment based on sex can include harassment between people of the same sex even if sexual desire is not present or cannot be proven.  This should also include a situation in which the harasser discriminates against the harassed because the harassed does not fulfill the harasser’s heuristics of a man or woman, as the language Seaman used against Kelley implied.  This specificity by the legislature helps not only to protect employees who might be subjected to this kind of treatment, but also to inform employers that such treatment is now more likely than before to be illegal.

Advertisements