Victims of sexual harassment in the workplace have gained greater protections thanks to a bill signed by Governor Jerry Brown earlier this year. Senate Bill 292 (“SB 292”) clarifies that for a harasser’s conduct to be considered “sexual harassment” under California law, the conduct does not need to be motivated by sexual desire.
California’s Fair Employment and Housing Act (“FEHA”) protects employees from discrimination in the workplace based on sex. FEHA specifically protects employees against sexual harassment. Prior to SB 292 being passed, there was confusion about what conduct was considered sexual harassment. This confusion stemmed from a 2011 Court of Appeal case, Kelley v. The Conco Companies (196 Cal. App. 4th 191 (2011)). In Kelley, the court held that an employee alleging same-sex sexual harassment had to prove that the harasser was motivated by sexual desire for the victim. The Kelley decision was at odds with other cases in California.
With the passage of SB 292, the law is now clear: to qualify as sexual harassment under FEHA, the sexually harassing conduct at issue does not need to be motivated by sexual desire. This law ensures that all California employees are protected from sexual harassment, whether or not the harassment is motivated by sexual desire.