Employment Law, Government & Legislation

Sexual harassment (in California)

In August this year California has amended its law prohibiting sexual harassment to clarify that sexual harassment does not need to be motivated by sexual desire. Apparently, an earlier Court of Appeal decision declined a sexual harassment claim due to the lack of any sexual desire. The new law clarifies that such motivation is not necessary to establish such a claim.

This makes complete sense (or rather the CA decision doesnt) as otherwise most sexual harassment claims would very likely fail. Leaving aside the question what ‘sexual desire’ actually constitutes, unless the offender’s conduct is explicit, it would always be impossible for the victim to prove harassment. The offender could almost always argue that it was only innocent banter or office culture not to be taken seriously.

For criminal offences, the prosecution has to prove ‘mens rea’ to succeed. For civil offences, a claim succeeds ‘on the balance of probabilities’. To ask a victim of sexual harassment to prove ‘sexual desire’ would raise the burden of proof to an (in this context) unacceptable standard. Note that in New Zealand the respictive definition of sexual harassment does not include the motivation of the offener. The actual conduct must be offensive, irrespective of the offender’s motivation. Which only seems fair and right.