California Governor Brown Signs SB 292 To Amend FEHA: Sexual Desire Not Necessary To Prove Sexual Harassment


by Sayema Hameed

On Monday, August 12, 2013, Governor Jerry Brown signed into law Senate Bill 292, which amends the Fair Employment and Housing Act (“FEHA”), Government Code Section 12940, to state as follows:

Sexually harassing conduct need not be motivated by sexual desire.

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Photo Credit: Pixabay

This amendment, authored by California Senate Majority Leader Ellen M. Corbett (D-East Bay), is aimed at protecting the rights of individuals who are sexually harassed in the workplace and was proposed in direct response to the Court of Appeal’s decision in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.

In Kelley, a male apprentice ironworker employed by The Conco Companies complained that he was subjected to a barrage of graphic, vulgar, sexually demeaning comments and gestures, and later to similar comments by male coworkers, and that he was also subjected to physical threats by coworkers in retaliation for his complaints about his supervisor. You can read the supervisor’s explicit comments in the Kelley opinion here.

After his suspension by his union, rendering him ineligible for employment, and the company’s decision not to rehire him, Kelly sued Conco and his former supervisor for sexual harassment, retaliation and related claims.  The trial court granted the defendants’ motion for summary judgment against Kelley.

On appeal, the Court of Appeal affirmed summary judgment as to Kelley’s sexual harassment claim, finding that, although the statements made to Kelley were “crude, offensive and demeaning,” there was no evidence that the statements “were an expression of actual sexual desire or intent” by the supervisor or that “they resulted from Kelley’s actual or perceived sexual orientation.”

The Court of Appeal in Kelley further stated: “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment.”  196 Cal.App.4th at 205.  The Court of Appeal concluded, therefore, that Kelly could not prove his sexual harassment claim because he was unable to show that the supervisor’s comments were motivated by a sexual desire for him.

Many believed that the Kelley opinion created confusion and weakened the right of employees to be free from sexual harassment in the workplace.  The enactment of SB 292 overturns the Kelley decision and clarifies that an individual who sues for sexual harassment under FEHA is not required to prove that the harasser’s conduct was motivated by sexual desire.

In a press release, Senator Corbett stated: “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.”


About Cabada & Hameed LLP

Cabada & Hameed LLP is a law firm serving the greater Southern California region. Formed by “big firm” veterans in 2009, the firm offers exceptional legal representation with experienced attorneys handling matters encompassing Labor & Employment and Business Law and Litigation. Cabada & Hameed LLP is certified as a Minority Owned Business (MBE) by the California Public Utilities Commission’s Supplier Clearinghouse and is a member of the California Minority Counsel Program. Partners and co-founders Francisco Cabada and Sayema Hameed bring over a decade of legal training and experience to every matter and ensure that clients receive individualized support and counsel, around-the-clock availability, the utmost discretion and maintenance of the highest professional and ethical standards. For more information, please visit the website www.cabadahameed.com.


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