"Sexual Desire" Not Required to Prove Sexual Harassment

Sexual harassment cases are typically brought by female employees alleging misconduct by male supervisors or co-workers. But the claims arise in other contexts—male employees harassed by female supervisors/coworkers, same-sex harassment, and claims that the hostile environment affected males and females alike. Previously, there was some uncertainty as to whether a claim for sexual harassment may be asserted in California where the harassing conduct was not motivated by sexual desire or intent. In other words, some courts found that lewd gestures and vulgar comments were not actionable unless the words or conduct amounted to a sexual proposition. One California court, Kelley v. Conco Cos. (2011) 196 Cal.App.4th 191, found that absent evidence that the harasser's misconduct was motivated by sexual desire, no claim will lie—that, despite evidence that the male harasser made comments to a male coworker, the plaintiff, about wanting to perform sex acts with the plaintiff, comments about how the plaintiff would look dressed as a woman, and other such crude comments. Court decisions like the one in Kelly, eroded protections afforded to workers in the workplace. Fortunately for California workers, the California legislature put the question to rest and on August 12, 2013, when Governor Jerry Brown signed into law Senate Bill 292, amending the Fair Employment and Housing Act ("FEHA"), Government Code Section 12940, to state as follows: "Sexually harassing conduct need not be motivated by sexual desire." The new law will ensure that in California victims of harassment will not have to prove that their harassers were motivated by "sexual desire" in order to recover damages resulting from sexual harassment.

Should you have questions about this or any employment issue, feel free to contact Christopher Taylor at (626) 219-6008.