On August 12, 2013, Governor Brown signed SB 292, which amends California's law prohibiting harassment to clarify that sexual harassment need not be motivated by sexual desire. SB 292 was introduced in response to a 2011 California Court of Appeals decision, Kelley v. Conco Companies, in which the court found that the male plaintiff, an apprentice ironworker, could not state a claim for sexual harassment based on his male supervisor's use of graphic, demeaning, and sexually explicit language. The Kelley court found that the use of such language was not discrimination "because of sex" because the plaintiff did not show that the supervisor was motivated by the plaintiff's sexual orientation or by "sexual desire." SB 292 amends the Fair Employment and Housing Act description of "harassment because of sex" to specifically provide that "[s]exually harassing conduct need not be motivated by sexual desire." In light of this amendment, employers with employees in California should ensure that their anti-harassment policies and training clearly convey to employees that sexually related conduct, statements, and images are prohibited in the workplace, regardless of the motivations of the person engaging in this conduct, making the statements, or conveying the images.
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