California Legislature Eliminates “Sexual Desire

Yesterday Governor Brown signed into law SB 292, by Senator Ellen Corbett, which amended the definition of harassment because of sex in the Fair Employment and Housing Act to specify that sexually harassing conduct need not be motivated by sexual desire.

The stated intent of the bill is to overturn the decision in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), and “clarify” that establishing sexual harassment under FEHA does not require proof of sexual desire toward the plaintiff.  According to the author, the appellate court in Kelley “created confusion” by directly contradicting a sister court’s ruling in Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547 (2006), and ignoring key provisions of the leading U.S. Supreme Court decision on same-gender sexual harassment, Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998).

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