California Broadens Workplace Sexual Harassment Protections
November 5, 2013
The California Fair Employment and Housing Act (FEHA) protects workers in this state from sexual harassment at work. Some of the behaviors that violate FEHA may include:
● Unwanted sexual advances or propositions
● Asking to exchange sexual favors for employment benefits
● Threatening adverse employment action if sexual advances are turned down
● Making derogatory comments, slurs, or jokes
● Verbal commentaries regarding a person’s body
● Discussing a person in a sexually degrading manner
● Leering or making inappropriate sexual gestures
● Displaying suggestive or offensive pictures, posters, or cartoons
● Writing sexually obscene notes, emails, or invitations
● Unwanted touching, groping, blocking, or other forms of physical assault
In August of this year, California Governor Jerry Brown signed Senate Bill 292 into law, which would amend the sexual harassment provision of FEHA. SB 292 will add the clarification that “Sexually harassing conduct need not be motivated by sexual desire.”
Kelley v. Conco
This new clarification of the law follows the decision in a recent sexual harassment case, Kelley v. Conco Companies. In that case, Patrick Kelley worked for Conco on various jobsites. Kelley claimed that a male supervisor made repeated, highly graphic, sexually demeaning comments to him after he made a mistake on the job. Other male coworkers joined in with the offensive and obscene sexual comments. Kelley reported the offensive conduct to another supervisor who informed him, “That's just the way these guys are.” For weeks after Kelley complained about the harassment, many other coworkers repeatedly called him “gay” and a “snitch” and physically threatened him on a regular basis. Kelley filed a lawsuit for sexual harassment and retaliation under FEHA.
In that case, the trial court decided that Kelley could not show sexual harassment and the Court of Appeals affirmed the decision. The court reasoned that not all demeaning, crude, offensive, or sexually-related comments automatically fell under the definition of sexual harassment. The court also stated that Kelley had not shown that the comments came from a place of sexual desire or intent toward him from his supervisor or coworkers. Furthermore, the court determined the comments did not directly stem from Kelley’s actual or perceived sexual orientation.
Wanting to avoid a repeat of the Kelley decision, California Senate Majority Leader Ellen Corbett wrote and introduced SB 292 in an effort to broaden sexual harassment laws and ensure the laws protect all employees from sexually offensive conduct. No employee should have to endure vulgar or obscene comments or gestures at work, regardless of the motivation behind the conduct or the gender and sexual orientation of the victim. The new clarification in FEHA aims to guarantee that all California employees better receive full protection under the existing sexual harassment laws.
SB 292 and the revisions of FEHA will go into effect starting January 1, 2014. Hopefully, the new version of the law will serve as a reminder that to employers that sexual harassment may take many forms and thus employers should have zero tolerance for harassment of any kind. If you believe that you have suffered any type of harassment at work, do not hesitate to contact Pershing Square Law Firm as soon as possible.