New Amendment Limits the “But I Didn’t Mean It” Defense to Sexual Harassment Claim

By Tara K. Clancy and Kristine W. Hanson

A new California senate bill recently signed into law will have a profound effect on sexual harassment suits filed under state law. The law, submitted as Senate Bill 292, makes courtroom relief more accessible in previously difficult-to-win cases of same-sex harassment. Gone are the days when sexual harassment required evidence of sexual desire; in are those where liability may arise from comments or actions based on sex alone. Employers will need to educate their employees regarding what constitutes sexual harassment in light of this change.

Same-Sex Harassment is Sexual Harassment

The California Fair Employment and Housing Act (“FEHA”) has long-protected the right of all persons to seek, obtain, and hold employment without discrimination or harassment based on race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. Likewise, federal law protects against same-sex sexual harassment. The United States Supreme Court explicitly prohibited same-sex sexual harassment in Onacle v. Sundower Offshore Services, Inc., published in 1998. The Court held that workplace harassment between members of the same sex made “because of sex” constituted sexual harassment. California’s new law expands upon the Sate’s existing protections and further aligns itself with cases like Onacle by eliminating hurdles in how sexual harassment law is applied. While same-sex harassment was previously prohibited, it was significantly more difficult for individuals claiming that they were sexually harassed by a member of the same sex to prove as much. Now individuals will have an easier time establishing that they were harassed by a member of the same sex.

SB 292 Reverses the Court’s Controversial Decision in Kelley

On August 12, 2013, Governor Jerry Brown signed Senate Bill 292 into law, expanding FEHA’s definition of sexual harassment. Before the amendment, FEHA defined “harassment” because of sex as including sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Proof of sexual harassment, however, 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 is not motivated by sexual desire. In so doing, the new law expands the realm of actions for which an employer may be held liable based on the actions of its employees.

SB 292 represents a significant change in sexual harassment law because it rejects the view adopted by the California Court of Appeal in a controversial 2011 decision entitled Kelley v. The Conco Companies. In Kelley, the court concluded a male employee’s vulgar and sexually disparaging comments to a same-sex co-worker did not constitute sexual harassment because the co-worker failed to present evidence that the employee was expressing his actual sexual desire or intent, or that the comments resulted from the co-worker’s actual or perceived sexual orientation. In other words, Kelley could not prove that the male co-worker who made disparaging comments toward him based on sex was actually interested in him in a sexual way, or that he understood or thought of Kelley as being gay. The Kelley decision shocked many because the court rejected the employee’s sexual harassment claim despite noting a litany of abusive comments (e.g., telling Kelley he had a “nice ass,” telling Kelley his pants “made [his] ass look good”). As the Kelley court explained, the mere fact that words have sexual content, or connotations, or discuss sex, is not necessarily sufficient to establish sexual harassment. Rather, the court felt the employee crucially needed to show that his male co-worker was motivated by sexual desire; mere innuendo was not enough. Kelley could not prove this and accordingly could not win his case.

Bottom line

In short, Employers must now scrutinize offensive comments by same sex employees objectively, based upon the content of the words and not the intent of the speaker. SB 292 rejects the view adopted in Kelley and expressly clarifies that behavior can be considered sexual harassment even if the conduct is not motivated by sexual desire. Individuals like Kelley will now have an easier time proving their claims. If Kelley brought his case today, his co-worker—and potentially his employer as well—could be held liable for harassment based on the sexual nature of the comments alone, even if the alleged harasser claims he or she did not mean it. Employers, accordingly, will need to educate their employees as to what constitutes sexual harassment in light of this new law and make clear that behavior can be considered sexual harassment even if the employee’s remarks or conduct is not motivated by sexual desire. Employers will also need to update their policies to reflect this change and make clear that such behavior will not be tolerated in the workplace. As with any policy change, employees should be given the updated policy or told about the change and instructed to access the policy electronically. Sen. Bill No. 292 (2013-2014 Reg. Sess.)

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(Article initially co-authored by Ms. Clancy and Ms. Hanson for publication in the California Employment Law Letter.)