BILL ANALYSIS                                                                                                                                                                                                    ”



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          Date of Hearing:   June 26, 2013

                     ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
                               Roger HernŠndez, 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 








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