As a sexual harassment trainer based in California, I’ve received several questions about whether SB 292, recently signed into law, changes California’s definition of what constitutes sexual harassment.
My take on it? SB 292 clarifies California’s Fair Employment Housing Act but does not change it – except for employers in the Bay Area.
Here’s a good, concise article on SB 292 and its effect. Essentially, the statute clarifies that under FEHA, sexual intent is not required for sexual harassment. That seems to be pretty much what everyone thought the law was until 2011, when the First District Court of Appeal held otherwise in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191. Kelley, a same-sex harassment case, held that the person suing had to prove sexual intent despite his boss using sexual language. No other California appellate courts appear to have followed Kelley on this point. However, the Bay Area trial courts (those in the First District’s jurisdiction) were bound by the decision until it was essentially overruled by SB 292. Apparently, the legislature did not want to wait around for the California Supreme Court to settle the issue. (It looks like a petition for review was never filed with the California Supreme Court, though the high court denied requests to depublish the opinion.)
So for most employers in California, it should be business as usual. Honestly, even after Kelley, it was never going to be a good idea to allow an employee to use sexually explicit language in the workplace, regardless of who the language was targeted to or the employee’s intent.