California expands definition of unlawful sex harassment

California has officially clarified that its employment discrimination law (the Fair Employment and Housing Act, “FEHA”) prohibits harassing comments that in any way relate to sex, even if they are not motivated by sexual desire. California Governor Jerry Brown signed legislation amending FEHA to say that sexual desire is not a required element in harassment claims. The change was motivated by Kelley v. The Conco Companies, a 2011 appellate court case in which a straight male employee was repeatedly called “faggot” and “bitch” by his co-workers, including his supervisor. The supervisor also made “jokes” about how he planned to rape the employee for not doing his job. The supervisor and co-workers were purportedly straight as well, so the comments were not motivated by sexual desire. Because of that, the court held that the employee could not claim harassment under FEHA. The new law closes that loophole and theoretically means all sexually inappropriate comments and conduct in the workplace can theoretically give rise to harassment claims.