California’s Fair Employment & Housing Act (“FEHA”) already prohibits discrimination and harassment “based on sex.” Most people properly understand the term “sex” in this context to equate to “gender” or “gender identity.” Thus, most people understand that it is illegal for an employer to treat a female employee differently than a similarly situated male employee (or vice versa).
However, in a 2011 appellate case involving allegations of same-sex sexual harassment, the Court confused the analysis by equating “sex” with “sexuality” rather than “gender.” The case was Kelley v. The Conco Companies, 196 Cal. App. 4th (2011). In Kelley, the Court ruled that the victim failed to prove that the harasser had a sexual desire for the victim. Thus, even though the victim was clearly targeted because of his gender, the Kelley Court concluded that no sexual harassment occurred.
Senate Bill (SB) 292 corrected this perverse outcome by amending FEHA to make it clear that “sexually harassing conduct need not be motivated by sexual desire.” Now, as a result of SB 292, the sexual orientation, sexual intent, or desire of the harasser or victim is no longer a relevant inquiry. Instead, the focus will return to whether the harasser targeted the victim because of his or her gender. That is, if the victim can show that someone of the opposite sex of the victim would not have been targeted, then the victim has properly shown the conduct to be “based on sex.”
SB 292 was sponsored by Senator Ellen Corbett (D-Hayward) and signed by Governor Brown on August 12, 2013.
