In January, the California Court of Appeals ruled that individuals may file an action for sexual harassment if they have been harassed with verbal attacks about their sexual identity — regardless of whether or not such attacks were motivated by sexual desire. Put another way, sexual harassment need not be driven by sexual desire to be considered sexual harassment.Thus, to prove harassment because of sex, plaintiffs need only offer evidence that gender was a significant factor in the harassment.
This particular decision resolves any uncertainty created by Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011). A show of desire is not essential in a sexual harassment claim. A plaintiff may, of course, still prove the inference that a harasser’s actions were sexual in nature and motivated by desire, but he or she may also argue that the instigator was motivated by general hostility towards a plaintiff’s gender. He or she might, for example, provide comparative evidence on the ways the harasser treated both sexes in the workplace.
This recent decision will become important for employers. In order to avoid such lawsuits, they must now examine offensive comments made by all workers in an objective manner, considering the content of the remarks and not the speaker’s intentions. Employers should institute strict complaint procedures, bring in zero tolerance rules and openly encourage employees to report any inappropriate behavior promptly. Employment policies and handbooks need to be updated to reflect this change, and employers must strive to inform workers of it.