California has amended its Labor Code to include greater protections for employees from sexual harassment in the workplace. The amendment comes as a result of a need for clarity about the  same-sex sexual harassment many employees experience on the job.

Whereas times past have seen sexual harassment claims based mostly on behavior between men and women, today’s sexual harassment can also come in forms that do not involve opposite sexes and that need not be motivated by sexual desire, according to the new Labor Code Amendment.

SB 292 amends the California Fair Employment and Housing Act (FEHA) to remove the need to prove sexual desire in sexual harassment cases. It also clarifies that sexual harassment may occur regardless of sexual orientation of either party or the harasser’s intent. The bold move promises to offer heightened amounts of protection for previously borderline cases of sexual harassment throughout California’s workforce.

Kelly v. Conco Companies

The amendment comes as a result of legislative motivation to overturn a court’s decision in a cased call Kelly v. Conco Companies. Kelly involved interactions between male supervisors and coworkers and a male plaintiff alleging same-sex sexual harassment. Since both the supervisor and coworkers were heterosexual and expressed no sexual desire for the plaintiff, the court ruled that their sexually explicit comments did not constitute sexual harassment.

The ruling was slightly incongruent with previous opinions, however. For instance, in a similar case, Singleton v. United States Gypsum, heard in 2006, courts ruled just the opposite of Kelly. Singleton also involved allegations of same-sex sexual discrimination, this time between heterosexual male co-workers.

The plaintiff complained that he’d endured sexually explicit comments and remarks on a continuous basis, and was disregarded when he reported the situation to his supervisor.  When he was eventually terminated, he sued for sex discrimination, sexual harassment and retaliation. The appellate court reversed the lower court’s summary judgment in favor of the defendant, opining that it was error for the lower court to disregard the barrage of sexually explicit comments from the plaintiff’s co-workers.

In deciding for the plaintiff, the appeal court relied on a Supreme Court case called Oncale v. Sundowner Offshore Services. Since the defendant had argued in Singleton that “earnest sexual solicitation” was required based on Oncale, the appeals court specifically demonstrated that this was not, in fact, the intended meaning of Oncale. In Oncale, the Court laid out the necessary factors for proving same-sex harassment stating, “harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex.”

Legislators Step Up

In Kelly, the court ruled that even though the plaintiff was subjected to a slew of continual and severely sexually explicit remarks, this did not equate to a hostile work environment under FEHA, and that the plaintiff failed to show that the alleged harassment was motivated by sexual desire.  Legislators found this opinion to be confusing in light of previous, similar cases like Singleton and Oncale, fearing that Kelly could be construed to require future plaintiffs to prove sexual desire in all same-sex sexual discrimination and harassment cases.

Thus, the impetus for the Labor Code amendment came from the desire of legislators to clarify that sexual discrimination and harassment claims under FEHA do not require proving that defendants had actual sexual desire for plaintiffs. For claims of harassment, then, it is enough, as the appellate court stated in Singleton, that “sex is used as a weapon to create a hostile work environment.”

SB 292 was introduced by Senate Majority Leader Ellen Corbett (D-East Bay), who stated in an August 12, 2013 press release: “SB 292 ensures that all Californians who are sexually harassed will receive the wide range of protections under existing law. I thank Governor Brown for signing this important legislation that protects all individuals whenever they are sexually harassed in the workplace, regardless of motivation. As elected officials, we must always strive to protect all Californians, regardless of gender, sexual orientation, race or any other personal characteristic.”

New Language

Effective January 1, 2014, SB 292 adds the following language (in bold) to the California Labor Code (Government Code Section 12940(j)(4)(C)): “For purposes of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.

The new language makes important distinctions about the meaning of sexual harassment under the FEHA. It keeps the definition of sexual harassment claims broad enough to include harassing behavior involving employees sharing the same sex, whether or not sexual desire is present. Even beyond the same-sex scenario, the law ensures that hostile work environments do not hinge on an employee’s ability to prove sexual desire.

Just a Few Short Words?

Though the amendment consists of just a few short words, these words are important. Essentially, they overturn Kelly v. Conco and pave the way for greater protections for employees at work. A harassing or hostile work environment can make a job an extremely inhospitable place for performing required duties and tasks. Legal protection is necessary to assist employees with asserting their right to be treated equally and fairly at work according to law.