BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 292 (Corbett)
As Amended April 2, 2013
Hearing Date: April 16, 2013
Fiscal: No
Urgency: No
TW
SUBJECT
Employment: Sexual Harassment
DESCRIPTION
This bill would clarify that, with respect to an
employment-related sexual harassment claim made under the Fair
Employment and Housing Act, sexually harassing conduct need not
be motivated by sexual desire.
BACKGROUND
In the United States, Title VII of the Civil Rights Act of 1964
(42 U.S.C.S. Sec. 2000e et seq.) prohibits discrimination
because of sex in the workplace, which is construed to include a
prohibition of sexual harassment. In California, the Fair
Employment and Housing Act (FEHA) (Gov. Code Sec. 12900 et seq.)
specifically prohibits workplace harassment because of sex,
which includes sexual harassment. There are two theories of
sexual harassment in the workplace: (1) quid pro quo (a term of
employment is conditioned on the submission to unwelcome
advances); and (2) a hostile work environment (the harassment is
sufficiently pervasive so as to alter the conditions of
employment and create an abusive work environment). (Mogilefsky
v. Superior Court (1993) 20 Cal.App.4th 1409, 1414.)
For a plaintiff to prove a hostile work environment due to
harassment based on sex, the United States Supreme Court, in
Oncale v. Sundowner Offshore Services, Inc. (1998) 523 U.S. 75,
80-81, established three primary evidentiary routes as follows:
(1) sexual intent or desire on the part of the defendant toward
the plaintiff; (2) general hostility by the defendant toward a
(more)
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particular sex, of which the plaintiff is a member; or (3)
comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace. Although Oncale
was a Title VII sexual harassment case, "California courts
frequently seek guidance from Title VII decisions when
interpreting the FEHA and its prohibitions against sexual
harassment" because FEHA and Title VII "share the common goal of
preventing discrimination in the workplace." (Lyle v. Warner
Brothers Television Productions (2006) 38 Cal.4th 264, 278.) As
such, subsequent California FEHA cases have cited to these three
primary evidentiary routes when analyzing hostile work
environment sexual harassment claims. (See Singleton v. United
States Gypsum Company (2006) 140 Cal.App.4th 1547, 1562; Lyle v.
Warner Brothers Television Prod., supra, 38 Cal.4th at p. 221;
Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 204-207.)
The author reports that a recent case, Kelley v. Conco Companies
(2011) 196 Cal.App.4th 191, has created confusion regarding a
plaintiff's evidentiary requirement for a hostile work
environment sexual harassment claim. In Kelley, the plaintiff
claimed same-sex sexual harassment. The Kelley court analyzed
the plaintiff's claim according to the established evidentiary
routes for a hostile work environment sexual harassment claim
and found that, because there was no evidence that the
heterosexual male supervisor and coworkers sexually desired the
male plaintiff, the plaintiff failed to prove the first
evidentiary route, sexual intent. (Id. at p. 205.) The Kelley
court stated that the defendant and coworkers used language that
"was graphic, vulgar, and sexually explicit. The literal
statements expressed sexual interest and solicited sexual
activity. There was, however, no 'credible evidence that the
harasser was homosexual' or that the harassment was 'motivated
by sexual desire.'" (Id.) Although the Kelley court ultimately
rejected the plaintiff's claim based on a lack of showing of the
third evidentiary route (comparative evidence about how the
alleged harasser treated members of both sexes in a mixed-sex
workplace), the author reports that the Kelley opinion is being
construed to require a plaintiff to show sexual desire to
prevail on any sexual harassment claim.
This bill, sponsored by the California Employment Lawyers
Association, would clarify that sexual harassment claims do not
require a showing of sexual desire.
CHANGES TO EXISTING LAW
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Existing law, the Fair Employment and Housing Act prohibits
discrimination in housing and employment on the basis of race,
religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, marital
status, sex, age, or sexual orientation. (Gov. Code Sec. 12920
et seq.)
Existing law prohibits workplace harassment because of sex,
which includes sexual harassment, gender harassment, and
harassment based on pregnancy, childbirth, or related medical
conditions. (Gov. Code Sec. 12940(j).)
Existing case law , Mogilefsky v. Superior Court (1993) 20
Cal.App.4th 1409, 1414, provides two theories of sexual
harassment in the workplace: (1) quid pro quo (a term of
employment is conditioned on the submission to unwelcome
advances); and (2) a hostile work environment (the harassment is
sufficiently pervasive so as to alter the conditions of
employment and create an abusive work environment).
Existing case law , Oncale v. Sundowner Offshore Services, Inc.
(1998) 523 U.S. 75, 80-81, provides three primary evidentiary
routes for a hostile work environment sexual harassment claim:
(1) sexual intent or desire on the part of the defendant toward
the plaintiff; (2) general hostility by the defendant toward a
particular sex, of which the plaintiff is a member; or (3)
comparative evidence about how the alleged harasser treated
members of both sexes in a mixed-sex workplace.
This bill would clarify that, for a plaintiff to prove a hostile
work environment sexual harassment claim, the sexually harassing
conduct at issue need not be motivated by sexual desire.
COMMENT
1. Stated need for the bill
The author writes:
In 2011, the California Court of Appeal in Kelley v. Conco
Companies, 196 Cal.App.4th 191, 1 Dist., 2011 held that a
plaintiff in a same-sex harassment case must prove that the
harasser harbored a sexual desire for the plaintiff in order
to survive summary judgment. The decision directly
contradicted a sister court's ruling in Singleton v. United
States Gypsum Co. (2006) 140 Cal.App.4th 1547, and ignored key
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provisions of the leading [U.S.] Supreme Court decision on
same-gender sexual harassment, Oncale v. Sundowner Offshore
Services, Inc. (1998) 523 U.S. 75.
The split in authority has created confusion as to how a
plaintiff must prove sex discrimination for purposes of a
same-sex sexual harassment claim under the Fair Employment and
Housing Act (FEHA). Before the Kelley decision, the law under
[T]itle VII of the federal Civil Rights Act of 1964 (42 U.S.C.
[Sec.] 2000e et seq.) and the FEHA (Gov. Code, [Sec.] 12900 et
seq.) recognized that sexual harassment occurs when sex is
used as a weapon to create a hostile work environment,
regardless of sexual desire. The key elements a plaintiff
must prove in a sexual harassment claim under a hostile work
environment theory is that the alleged conduct or behavior
amounted to discrimination because of sex and that the conduct
was so severe or pervasive so as to alter the terms or
conditions of employment. The Kelley court, however,
improperly limited the evidentiary routes through which a
plaintiff may prove discrimination because of sex, failing to
follow Oncale and Singleton and turning hostile work
environment theory on its head, by requiring a showing of
sexual desire.
This bill would overturn the decision in Kelley v. Conco
Companies (2011) 196 Cal.App.4th 191, 1 Dist., and clarify
that sexual harassment under [FEHA] does not require proof of
sexual desire towards the plaintiff.
2. Clarification of evidentiary requirement for workplace sexual
harassment
To prevail on a claim for hostile work environment sexual
harassment, the plaintiff must prove the following elements:
the plaintiff was subjected to verbal or physical conduct of a
sexual nature;
the conduct was unwelcome; and
the conduct was sufficiently severe or pervasive to alter the
conditions of the plaintiff's employment and create an abusive
working environment. (Lyle v. Warner Bros. Television Prods.
(2006) 38 Cal.4th, 264, 279.)
Courts have grappled with determining what verbal or physical
conduct constitutes conduct of a "sexual nature," particularly
with respect to same-sex sexual harassment claims made by a
heterosexual victim against a same-sex heterosexual harasser.
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For Title VII claims, the conduct at issue must actually
constitute discrimination because of sex, not be merely tinged
with offensive sexual connotations. (Oncale v. Sundowner
Offshore Services, Inc. (1998) 523 U.S. 75, 81.) Hostile work
environment sexual harassment claims brought under FEHA use the
same standard. (Singleton v. United States Gypsum Company
(2006) 140 Cal.App.4th 1547.) As such, "it is 'only necessary
to show that gender is a substantial factor in the
discrimination . . . . ' [Citation omitted.] Accordingly, it
is the disparate treatment of an employee on the basis of sex -
not the mere discussion of sex or use of vulgar language - that
is the essence of a sexual harassment claim." (Id. at 1561.)
Singleton further held that "there is no requirement that the
motive behind the sexual harassment be sexual in nature." (Id.
at 1564; emphasis in original.)
The sponsor of this bill, California Employment Lawyers
Association (CELA), asserts that, although case law had already
established that sexual desire or intent is not required to
prove a hostile work environment sexual harassment claim, the
court in Kelley v. Conco Cos. (2011) 196 Cal.App.4th 191
directly contradicted the ruling in Singleton. CELA argues that
"[d]espite the sexually explicit, offensive, and directly sexual
nature of the harassment of this case, which included threats of
sexual violence, the court held that because the plaintiff had
not proved the harasser actually desired to have sex with the
victim, there was no claim for sexual harassment."
To prove the element that the defendant's harassing conduct was
of a sexual nature, the plaintiff may utilize any of the
following primary evidentiary routes: (1) sexual intent or
desire on the part of the defendant toward the plaintiff; (2)
general hostility by the defendant toward a particular sex, of
which the plaintiff is a member; or (3) comparative evidence
about how the alleged harasser treated members of both sexes in
a mixed-sex workplace. (Oncale v. Sundowner Offshore Services,
Inc., supra, 523 U.S. at pp. 80-81; Singleton v. United States
Gypsum Company, supra, 140 Cal.App.4th at p. 1562; Lyle v.
Warner Brothers Television Prod., supra, 38 Cal.4th at p. 221;
Kelley v. Conco Companies, supra, 196 Cal.App.4th at pp.
204-207.) The Kelley court, when analyzing whether the
statements made by Kelley's supervisor satisfied the first
evidentiary route, held that there was no evidence presented
that the statements were an expression of "actual sexual desire
or intent . . . or that they resulted from Kelley's actual or
perceived sexual orientation." (Kelley v. Conco Cos., supra,
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196 Cal.App.4th at p. 205.) Further, the Kelley court stated
that "[c]ourts 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." (Id.) The Kelley
court, after analyzing whether there was evidence sufficient to
satisfy the third evidentiary route, rejected Kelley's sexual
harassment claim.
Although, the Kelley court did not rest its rejection of
Kelley's claim based on a mere lack of proof of the first
evidentiary route, the author argues that legal practioners and
employer defendants are using the Kelley decision to argue that
a same-sex harassment claim can only be proven through a showing
of sexual desire on the part of the harasser. Indeed, at least
one employment law practice guide states that some courts hold
that the harassing conduct in a same-sex harassment claim must
be motivated by sexual desire:
A claim does not lie based on a male coworker's allegedly
harassing comments about wanting to perform sex acts with male
plaintiff, what plaintiff would look like dressed as a woman,
or other crude sexual matters about plaintiff, if there is no
evidence of the alleged harasser's sexual desire or intent.
[Kelley v. Conco Cos. (2011) 196 CA4th 191, 205, 126.] (Chin,
Wiseman, Callahan, and Exelrod, Cal. Practice Guide:
Employment Litigation (The Rutter Group 2012) Para. 10:126:11,
p. 10-27.
In order to clarify and reaffirm that a hostile work environment
sexual harassment claim may be proven by other evidentiary
routes, this bill would provide that a plaintiff need not prove
the alleged harasser's sexual intent or desire. Importantly,
this bill would not preclude a plaintiff from using the first
evidentiary route of proving sexual intent or desire, but rather
would reiterate that sexual intent or desire is not the sole
method of proving sexual harassment.
3. No extension or alteration of existing employer liability
This bill will codify existing law that provides that, although
sexual desire is one evidentiary route to proving hostile work
environment sexual harassment, sexual desire is not necessary to
prove a workplace sexual harassment claim. Further, a plaintiff
would still be required to prove all of the elements of a sexual
harassment claim (see Comment 2). As such, it does not create a
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new theory of employer liability under FEHA or lessen the
plaintiff's burden of proving each element of a sexual
harassment claim required under existing law.
Support : American Association of University Women; California
Labor Federation; California Teachers Association; Equality
California; Mexican American Legal Defense and Educational Fund;
Transgender Law Center
Opposition : None Known
HISTORY
Source : California Employment Lawyers Association
Related Pending Legislation : None Known
Prior Legislation : None Known
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