On Monday, Governor Jerry Brown signed a bill stating that sexually harassing conduct need not be motivated by sexual desire. The bill, which will take effect January 1, 2014, is an overreaction to a state court of appeals opinion that I wrote about two plus years ago — Kelley v. The Conco Companies.
As I’ve discussed before, harrassment is against the law because it’s a form of discrimination. Just as you can’t demote, refuse to hire, or fire someone because of a protected category, you can’t create a hostile work environment for such a reason. In the context of sexual harassment, courts (including the U.S. Supreme Court in Oncale v. Sundowner (pdf) and the California Supreme Court in Lyle v. Warner Bros. Television Productions (pdf)) have stressed that the harassment, to be actionable, must be “because of sex.” Lose that requirement, the courts warned, and laws against harassment would go from protecting against a form of discrimination to becoming “a general civility code for the American workplace.”
Governor Brown and the state legislature have ignored that warning in enacting SB 292, which specifies, “for purposes of the definition of harassment because of sex under [the Fair Employment and Housing Act], that sexual harassing conduct need not be motivated by sexual desire.” The analysis of the bill (SB 292 Analysis) expressly states that it’s in reaction to Kelley. But that opinion never said that sexually harassing conduct had to be motivated by sexual desire. Still, again according to the analysis, the author [Senate Majority Leader Ellen Corbett] reports that the Kelley opinion is being construed to require a plaintiff to show sexual desire to prevail on any sexual harassment claim.”
Construed by whom? In what context? More importantly, why do we need a bill objecting to this undisclosed misinterpretation of a case reiterating the various, long-established ways to prove harassment was “because of sex”? And did anyone ask these questions in passing this bill unanimously in both houses?
SB 292 will lead to more sexual harassment claims surviving summary judgment and going to trial. That’s undoubtedly what the bill’s sponsors — the California Employment Lawyers Association (which, despite the breadth of the name, is comprised exclusively of lawyers for employees) — had in mind. To lessen the risk, employers can take the following steps:
- Ensure that personnel policies prohibit not just harassment, but also vulgar language, sexual innuendo, sexual propositions, threats, and bullying.
- Be vigilant in enforcing those policies.
- Respond to complaints of bullying, crude behavior, and mistreatment that isn’t necessarily “because of sex” as you would to a sexual harassment complaint. This means you need to conduct (or have someone qualified conduct) a prompt, fair, and thorough investigation and, where necessary, take steps reasonably calculated to stop the behavior.
Welcome to life under a General Civility Code.