BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 292|
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THIRD READING
Bill No: SB 292
Author: Corbett (D)
Amended: 4/2/13
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 4/16/13
AYES: Evans, Walters, Anderson, Corbett, Jackson, Leno, Monning
SUBJECT : Employment: sexual harassment
SOURCE : California Employment Lawyers Association
DIGEST : This bill clarifies 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.
ANALYSIS : Existing law:
1.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.
2.Prohibits workplace harassment because of sex, which includes
sexual harassment, gender harassment, and harassment based on
pregnancy, childbirth, or related medical conditions.
Existing case law, Mogilefsky v. Superior Court (1993) 20
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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 clarifies 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.
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
particular sex, of which the plaintiff is a member; or (3)
comparative evidence about how the alleged harasser treated
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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.)
Comments
According to the author:
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 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
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/18/13)
California Employment Lawyers Association (source)
American Association of University Women
California Labor Federation
California Teachers Association
Equality California
Mexican American Legal Defense and Educational Fund
Transgender Law Center
ARGUMENTS IN SUPPORT : According to the California Employment
Lawyers Association (CELA), 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."
AL:nl 4/18/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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