Two years ago, a California appellate court ruled in the case of Kelly v. The Conco Companies, Inc. (2011) 196 Cal.App.4th 191 that a man's claim of sexual harassment could not be maintained becaues it was not, as the law requires, "based on sex." Kelly worked at a construction site. He was subjected to vile comments, including the frequent use of the f-word, other crude terms, and suggestions that Kelly was feminine. (I have cleaned up the description of the vulgar comments and behavior for this blog. You can read the gory details in the case opinion.) However, there was no indication that the taunting was based on the perpetrator's sexual desire. Nor was there any indication that the victim was homosexual. Rather, the construction workplace was generally filled with crude comments, profanity and related language.
Just two days ago California responded to the Kelly case by modifying the Fair Employment and Housing Act (FEHA). The law now states that "sexually harassing conduct need not be motivated by sexual desire." Senator Corbett was convinced that the Kelly decision gave the impression that to prevail on a sex harassment claim a person must prove sexual desire. To this extent, I think that Senator Corbett misunderstood Kelly. It simply ruled that in the specific case there was no evidence, based on the perpetrator's motive, or the victim's sexual preference, that the crude behaviors were "based on sex." The court did not impose a requirement that sexual motive be shown in order to prevail on a case of harassment. For example, a plaintiff alleging sexual harassment could prevail on his/her claim by showing a disparity in treatment between the sexes.
What impact will this legislation have on litigation? I'm not sure. Some commentators suggest it won't have any impact. Others suggest that by inserting this provision into FEHA the state is turning discrimination law into a code of workplace civility. Whether this new provision is something that allows plaintiffs to avoid summary judgment and take more cases to trial has yet to be seen.