by Tara K. Clancy and Kristine W. Hanson
A new California law means employees who file same-sex harassment cases should have an easier time getting relief from the courts. Senate Bill (SB) 292, which was signed into law in August and takes effect in January, means employees don’t have to have evidence that sexual desire is behind sexual harassment. Instead, liability may arise from comments or actions based on gender alone.
Before the new law, sexual harassment required a showing that the conduct was motivated by sexual desire. SB 292 expressly provides that conduct may be considered sexual harassment even if it isn’t motivated by sexual desire. As a result, the new law expands the realm of actions for which an employer may be liable based on the acts of its employees.
The new law rejects the view adopted by the California Court of Appeal in Kelley v. The Conco Companies, a controversial 2011 decision. In that case, the court concluded that a male employee’s vulgar and sexually disparaging comments to a male coworker didn’t constitute sexual harassment because there was no evidence that the employee was expressing a sexual desire or intent or that the comments were a result of his coworker’s actual or perceived sexual orientation.
Because of the new law, employers should scrutinize offensive comments by employees based on the content of the remarks, not the intent of the speaker. Also, employees should be educated on what constitutes sexual harassment in light of the new law. Employees need to know that certain behavior can be considered sexual harassment even if the remark or conduct isn’t motivated by a sexual desire.
Employers also need to update their policies to reflect the change and make it known that they won’t tolerate offensive behavior in the workplace.
For more information on this topic, see “New law: Same-sex harassment need not be motivated by sexual desire” on page 1 of the September 9, 2013, issue of California Employment Law Letter.
Tara K. Clancy is an attorney at Sedgwick LLP in San Francisco. She can be reached at tara.clancy@sedgwicklaw.com. Kristine W. Hanson is an attorney at Sedgwick LLP in San Francisco. She can be reached at kristine.hanson@sedgwicklaw.com.