Effective January 1, 2014, California’s Fair Employment & Housing Act (Gov. Code §§12940, et seq.) has been amended to push the boundaries of what counts as employment discrimination. California employers should revise all postings, employee handbooks and training materials to reflect two important changes in the law.
First, sexual harassment no longer has to have anything to do with sex. Sexual language is enough, even if the alleged harasser has no interest in the harassee. In Kelley v. Conco Companies (2011) 196 Cal. App. 4th 191, the Court of Appeal held that vulgar conduct did not amount to sexual harassment if there was no credible evidence that the harassment was motivated by sexual desire. In the Kelley case, a male supervisor directed “graphic, vulgar, and sexually explicit” language at a male employee. Although, if taken literally, the language “expressed sexual interest and solicited sexual activity,” because there was no evidence that the supervisor harbored sexual desire for the employee, the courts found that there was no sexual harassment. The Legislature reacted badly to the Kelley decision and passed Senate Bill 292, which clarifies that evidence that an alleged harasser was “motivated by sexual desire” is not required for employees bringing a claim for sexual harassment.
Second, Assembly Bill 556 adds “military and veteran status” to the categories of persons protected from employment discrimination under the FEHA. The FEHA currently protects and safeguards applicants and employees from discriminatory conduct based upon their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. The same protections afforded to applicants and employees in these protected categories will be extended to veterans and members of the military who seek, obtain and hold employment in California. Employers are permitted to inquire regarding military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.
Employers who are uncertain about the implications of these changes to their policies and practices should consult with counsel.