California Expands What Constitutes Sexual Harassment

In 2011, a California appellate court decided that a series of extremely egregious comments and conduct by male co-workers against another male co-worker did not constitute sexual harassment because the harassment was not motivated by sexual desire.  If the perpetrators and the victim were not of the same sex, I suspect the court would have had no trouble finding the behavior constituted unlawful sexual harassment.

The case, Kelley v. The Conoco Companies, was viewed as an aberration.  Even die-hard defense lawyers condemned the decision as an anomaly.  The perpetrators used vulgar, sexually-explicit comments and physically demeaning behavior to force the worker out of his job.  Since the court determined that sexual harassment had to be motivated by sexual desire, the employee was left without a remedy under the law, because the law does not provide a general civility code.

Yesterday, Governor Brown signed SB 292, sponsored by the California Employment Lawyers Association, to override the Kelley decision.  SB 292 amends California’s Fair Employment and Housing Act to specifically state that “Sexually harassing conduct need not be motivated by sexual desire.”  Signing the bill limits the chances that future conduct similar to the facts in Kelley will fall short of the “sexual harassment” hurdle.

Although I am generally not a fan of more laws, this concise and direct addition will prove useful to plaintiff’s lawyers in sexual harassment claims.  The employee no longer has to prove that the inappropriate conduct was motivated by the aggressor’s desire to have sexual or intimate relations with the victim.

Most responsible employers take appropriate measures to educate employees regarding what is and is not acceptable behavior in the workplace.  With this broader definition, employers should consider revising their employee handbooks and modify their annual sexual harassment prevention training.  (You are conducting annual or at least semi-annual sexual harassment prevention training, right?)

Employers and employees with questions about how this new law will impact their work environment should contact an experienced employment attorney familiar with the ever-changing landscape in sexual harassment law.