New California Law Confirms That “Sexual Desire” is Not an Element of a Sexual Harassment Claim

Governor Brown on Monday signed into law a new bill stating that the plaintiff in a sexual harassment lawsuit need not prove that the sexually harassing conduct was “motivated by sexual desire.”

The law, Senate Bill 292, is a reaction to Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), in which the plaintiff, an apprentice ironworker, sued Conco, one of the largest concrete construction companies in California, for sex discrimination and sexual harassment, wrongful termination, and related claims.  The plaintiff presented evidence that throughout his employment, his male supervisor routinely used sexually explicit and vulgar language toward him, including calling him a “bitch” and a “fucking punk,” telling him that he had a “nice ass,” that he wanted to “fuck [him] in the ass,” that his pants “made [his] ass look good,'” that he would “fuck the shit out of [his] ass,” that he would make him “his bitch,” and that he would “cum all over [his] ass,” among other profane, sexually charged, and violent language.

The Court of Appeal dismissed the plaintiff’s claims, stating among other things that although the language was “graphic, vulgar, and sexually explicit,” “[t]here was, however, no ‘credible evidence that the harasser was homosexual’ or that the harassment was ‘motivated by sexual desire.’”

Senate Bill 292 overturns this decision and broadens the scope of sexual harassment claims by stating that “[s]exually harassing conduct need not be motivated by sexual desire.”

California companies would be well-advised to review their anti-harassment policies with their workforce to ensure compliance with this new legal standard.


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

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