August 16, 2013

After Brief Confusion, Certainty Restored: Sexual Harassment Need Not Be Motivated By Sexual Desire

By signing Senate Bill (SB) 292 into law, California Governor Jerry Brown memorialized the seemingly non-controversial proposition that sexual harassment plaintiffs suing under the Fair Employment and Housing Act (FEHA) are not required to show that the harasser acted out of sexual desire.  The new amendment to FEHA, effective January 1, 2014, was singularly focused on overturning the 2011 California Appeals Court opinion in Kelley v. The Conco Companies, 196 Cal.App.4th (2011), which, despite favorably citing seminal decisions on same-sex harassment and the role of gender in sexual harassment cases, strayed far from established jurisprudence.

Patrick Kelley’s brief employment with The Conco Companies was marked by outrageously aggressive and offensive behavior directed toward him by male co-workers.  In what reads as a stereotype of construction-site hazing, almost from day one he was subjected to hostile, purportedly joking comments about his “nice ass,” referred to as a “bitch,” and was the target of statements about graphic sexual acts.  After reporting the conduct, Kelley claimed he was retaliated against, called “punk bitch,” “snitch” and “fag,” and threatened with violence.  The response of a Conco dispatcher to Kelley’s report of this additional activity was allegedly, “Well, that’s the way the trade is, man.  That’s just the way these guys are.”

In rejecting Kelley’s later claims of sexual harassment, the First District Court of Appeal declared that a finding of sexual harassment necessarily depends on a showing that the conduct was because of the sex of the victim.  Nothing controversial there.  But the Court then veered off in a completely different direction, finding that “courts have routinely insisted on evidence that an alleged harasser was acting from genuine sexual interest before holding that the fact of a sexual proposition supported an inference of discrimination because of sex.”  While the Kelley Court observed that the statements by coworkers expressed sexual interest and solicited sexual activity, they noted that Kelley was not contending “that the statements were intended to be taken literally,” and “that in the environment in which this incident took place, sexually taunting comments by supervisors and employees were commonplace, including gay innuendo, profanity, and rude, crude and insulting behavior.”  In rejecting the sexual harassment claim, the Kelley Court concluded that there was “no evidence…from which a reasonable trier of fact could conclude that [the statements] were an expression of actual sexual desire or intent…or that they resulted from Kelley’s actual or perceived sexual orientation.”

Understandably, the Kelley decision was greeted with much surprise and consternation, and was immediately rejected as a “guidebook” for employers working to assess and prevent harassing workplace conduct.  In comparatively swift fashion, the California legislature has acted to make certain that Kelley is rejected, amending the FEHA, Government Code Section 12940, to state with conviction that “Sexually harassing conduct need not by motivated by sexual desire.”  Rather, with the focus back on the issue of gender, the victim must show that someone of the opposite sex (of the victim) would not have been subjected to the unwelcome sexual conduct.

While it is unlikely that any California employer adopted the overturned Kelley rationale as a cornerstone of their sexual harassment prevention policies and training, employers are reminded that paying attention to the effect on the victim, regardless of the harasser’s motivation or intent, is the most effective perspective to take in eliminating the threat of a hostile environment.