BILL ANALYSIS Ó SB 292 Page 1 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 SB 292 Page 2 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. SB 292 Page 3 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 SB 292 Page 4 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. SB 292 Page 5 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 Page 6