BILL ANALYSIS Ó
SB 292
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Date of Hearing: June 26, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB 292 (Corbett) - As Amended: April 2, 2013
SENATE VOTE : 38-0
SUBJECT : Employment: sexual harassment.
SUMMARY : Clarifies that, with respect to an employment-related
sexual harassment claim made under the Fair Employment and
Housing Act (FEHA), sexually harassing conduct need not be
motivated by sexual desire.
EXISTING LAW :
1)Under FEHA, prohibits discrimination in employment on the
basis of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender,
gender identify, gender expression, 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.
FISCAL EFFECT : Unknown
COMMENTS : This bill, sponsored by the California Employment
Lawyers Association, would clarify that sexual harassment claims
do not require a showing of sexual desire.
Brief Background on Sexual Harassment Claims
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
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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
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.)
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.
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.
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at 1564; emphasis in original.)
Recent Holding in Kelley v. Conco Companies
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.
ARGUMENTS IN SUPPORT :
The author writes the following in support of this bill:
"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
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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."
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.
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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.
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.
REGISTERED SUPPORT / OPPOSITION :
Support
American Association of University Women
California Employment Lawyers Association (sponsor)
California Labor Federation, AFL-CIO
California Teachers Association
Equality California
Mexican American Legal Defense and Educational Fund
Transgender Law Center
Opposition
None on file.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
SB 292
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