CALIFORNIA CHANGES SEXUAL HARASSMENT DEFINITION « Law Offices of Timothy Bowles | Top Employment Law Firm in Los Angeles


Prohibited Conduct Need Not Be Fueled By Sexual Desire

The California legislature has amended the California Fair Employment and Housing Act (FEHA) to clarify that sexual harassment does not require proof of sexual desire.

The amendment overturns Kelley v. Conco Companies (2011) 196 California Appellate 4th series (Cal.App.4th) 191, a same-sex harassment decision covered in our sexual harassment training seminars. The case arose in part from a male supervisor losing his temper with Patrick Kelley, a male apprentice ironworker. The supervisor’s tirade included graphic, vulgar, and sexually explicit remarks. He told plaintiff he wanted to perform various sodomizing acts on him and that sexual intercourse with him would be better than with plaintiff’s wife. The supervisor also commented about plaintiff’s body and said he would look good wearing little girl’s clothes. Kelley later sued employer Conco and the supervisor for sexual harassment.

The Kelley appeals court held the defendant employer and supervisor not liable as plaintiff failed to prove “sexual intent,” i.e., there was no evidence that the heterosexual male supervisor sexually desired the male plaintiff. “The mere fact that words may have sexual content or connotations, or discuss sex is not sufficient to establish sexual harassment.” Id. at 205.

Singleton v. U.S. Gypsum Co. (2006) 140 Cal.App. 4th 1547, another California appeals court case we have covered in training seminars conflicted directly with this Kelley decision. In Singleton, the court found an employer could be liable for same-sex harassment as such conduct did not have to be motivated by sexual desire.

California Government Code section 12940(j)(4)(c) is now amended to resolve this split in legal authority, adding the sentence: “Sexually harassing conduct need not be motivated by sexual desire.”

This FEHA amendment underscores the need for employers to provide harassment prevention training and education to all California supervisors and to take all complaints of offensive behavior seriously, including same-gender harassment allegations.

To schedule an on-site training session with one of our firm’s attorneys Tim Bowles or Cindy Bamforth, or to seek our guidance on management’s handling or prevention of sexual harassment complaints, visit our website or contact the Law Offices of Timothy Bowles directly at (626) 583-6600.