A Blockbuster Sexual Harassment Bill Posted December 7, 2018
SB 1300 declares the Legislature’s intent with regard to laws about harassment is “to provide all Californians with an equal opportunity to succeed in the workplace.” To that end, the bill specifically affirmed or rejected five judicial decisions.
The Legislature affirmed the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” (Id. at 26).
The Legislature affirmed the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine” and stated, “The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”
The Legislature affirmed the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.” The Legislature stated, “Harassment cases are rarely appropriate for disposition on summary judgment.”
The Legislature rejected the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act. By so doing, the Legislature affirmed that, “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”
The Legislature specifically rejected any language, reasoning, or holding to the contrary in the decision in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, noting that “The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties.”
The bill further explicitly prohibits any employer from requiring the execution of a release of a claim or right under FEHA, or from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace (including, but not limited to, sexual harassment) in exchange for a raise or bonus, or as a condition of employment or continued employment. Any agreement or document in violation of either of those prohibitions will be held to be contrary to public policy and unenforceable.
The bill expands the FEHA liability standards for acts of non-employees by noting that FEHA expressly prohibits any form of harassment (not just sexual harassment) of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, once the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
The bill also clarifies that a prevailing defendant in a civil action is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.
Finally, in addition to mandatory trainings, the bill also authorizes employers to provide bystander intervention training to employees (not required).
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