BILL ANALYSIS Ó
SB 292
Page 1
Date of Hearing: June 18, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
SB 292 (Corbett) - As Amended: April 2, 2013
SENATE VOTE : 38-0
SUBJECT : Employment: sexual harassment
KEY ISSUE : SHOULD THE FAIR EMPLOYMENT LAW BE REVISED TO CLARIFY
THAT SEXUAL HARASSMENT NEED NOT BE MOTIVATED BY SEXUAL DESIRE?
FISCAL EFFECT : As currently in the print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill clarifies what had long been thought
to be well-established law, that sexual harassment is prohibited
under state law without regard to the sexual desire of the
perpetrators. Like other forms of mistreatment, sexual
harassment is often motivated by hostility, not desire.
Unfortunately a recent appellate court decision has caused
confusion on this point. This bill responds to that decision by
reasserting that sexual desire need not be proven to establish a
valid claim of sexual harassment. The bill has no opposition.
SUMMARY : Clarifies the prohibition against sexual harassment in
employment. Specifically, this bill provides that sexual
harassment is prohibited under the Fair Employment and Housing
Act without regard to sexual desire.
EXISTING LAW :
1)Under 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.)
2)Prohibits workplace harassment because of sex, which includes
sexual harassment, gender harassment, and harassment based on
pregnancy, childbirth, or related medical conditions. (Gov.
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Code Sec. 12940(j).)
3)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). (Mogilefsky v. Superior Court (1993) 20
Cal.App.4th 1409, 1414.)
4)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. (Oncale v. Sundowner Offshore
Services, Inc. (1998) 523 U.S. 75, 80-81.)
COMMENTS : 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 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
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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.
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: (1) the plaintiff was subjected to verbal or physical
conduct of a sexual nature; (2) the conduct was unwelcome; and
(3) 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.)
Some courts have not always been clear whether 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. For federal sex harassment claims, it is well
established that the conduct at issue must be because of sex,
rather than tinged with 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.)
Although existing law should already be clear that sexual desire
is not required to prove a hostile work environment or quid pro
quo sexual harassment claim, the court in Kelley v. Conco Cos.
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(2011) 196 Cal.App.4th 191 has caused some considerable
confusion by apparently contradicting the ruling in Singleton.
In support of the bill, the California Employment Lawyers
Association 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
because of sex, the plaintiff may show: (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,
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.
This misstatement of the law has apparently caused some
commenters to believe that same-sex harassment can be proven
only by showing sexual desire on the part of the harasser, as
demonstrated by one well known practice guide:
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
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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 hostile work environment
and quid pro quo sexual harassment may be proven by other
evidentiary routes, this bill expressly states that a plaintiff
need not prove the alleged harasser's sexual intent or desire.
Importantly, this bill would not preclude a plaintiff from
proving sexual intent or desire, but rather would reiterate that
sexual intent or desire is not the sole method of proving sexual
harassment.
No Extension Or Alteration Of Existing Employer Liability . This
bill codifies existing law to the effect that it provides that
sexual desire is not necessary to prove a workplace sexual
harassment claim. As such, it does not create a 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.
REGISTERED SUPPORT / OPPOSITION :
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 on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334