Sexual Harassment NEED NOT be Motivated by Desire

In light of Kelley v. The Conco Companies, (“Kelley”) 196 Cal. App. 4th 191, 126 legislators enacted Senate Bill 292 amending the Fair Employment and Housing Act to explicitly state that sexual desire need not be a motivating factor in order for a plaintiff to prevail on a claim of harassment.

In Kelley a male plaintiff complained of harassment directed at him by another male coworker did not prevail on his claim for sexual harassment because he failed to prove that his harasser’s conduct was motivated by sexual desire. In response to this unfavorable verdict, legislators enacted and passed SB 292 which amended California Government Code § 12940 to now read, “Sexually harassing conduct need not be motivated by sexual desire.”

One inferred effect of this change is that it a same-sex harasser does not have to be a homosexual or bisexual to be liable for harassing a same-sex victim.