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.
New Protections
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.
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