Sexual Harassment: Sexual Desire Not Required

It has long been disputed whether sexual harassment needs to be based on sexual desire. This routinely occurs in instances of same sex harassment.  

On August 12, 2013, California Governor Edmund G. Brown signed into law SB 292 which amends Gov't Code section 12940(j)(4)(C) to include as the last sentence in the subsection : "Sexually harassing conduct need not be motivated by sexual desire."

In 2011, the  court in Kelley v. Conco Companies (1st Dist. 2011) 196 Cal.App.4th 191 cited several cases in deciding that a construction site worker was not sexually harassed despite graphic and vulgar comments made by a co-worker. The court reasoned:

"Unquestionably, the language used by both Seaman and by one of Kelley's coworkers on July 30 was graphic, vulgar, and sexually explicit.   The literal statements expressed sexual interest and solicited sexual activity.   There was, however, no “credible evidence that the harasser was homosexual” or that the harassment was “motivated by sexual desire.” Kelley at 205.

 “[T]o establish liability in a FEHA hostile work environment sexual harassment case, a plaintiff employee must show [he] was subjected to sexual advances, conduct, or comments that were severe enough or sufficiently pervasive to alter the conditions of [his] employment and create a hostile or abusive work environment.  [Citations.]” Kelley at 207.

This new legislation overturns the court's decision in Kelly. Since sexual desire is no longer a necessary requirement for establishing harassment based on sex, the extent of this new protection is significant. This change in the law protects employees that suffer sexual advances or other explicit comments that are severe or pervasive and interfere with their ability to work even where no sexual desire is contemplated by the harasser and they are made merely in jest.

Same Sex Harassment

While the construction site example in Kelley is a more deplorable example of severe or pervasive same sex harassment, this change in the law may have far reaching ramifications. Since sexual desire is no longer a requirement to show an animus by the harasser, the abuse by co-workers who have no sexual interest in their demeaned victim may now be actionable. Employers now have an obligation to prevent harassment even though it is known that the harasser has no sexual desire for the victim.

Potential Claims - Sexual Gossip/ Sexually Offensive Jokes

The protections of SB 292 could potentially reach other situations such as where co-workers are making fun or gossiping about the sex or sexual relations of co-workers. Where the comments are severe or pervasive and interfere with the victims' work environment, actionable sexual harassment against their employer might be available where previously there may have only been a cause of action for defamation against the individual making false statements.

Gossip could easily be seen as abusive and where done for the purpose of causing harm to the victim. It will be interesting to see how the courts define harassment where sexual comments are made in a disparaging way with the intent to cause harm. Gossip routinely interferes with working relationships. At which point does it become pervasive or severe enough to invoke protection under this new definition of harassment under FEHA?

The image in this article was provided courtesy of Ambro / FreeDigitalPhotos.net