California Ushers In Wave Of Sexual Harassment Laws In Wake Of #MeToo Movement

California Governor Jerry Brown recently signed a number of sexual harassment bills into law, which take effect January 1, 2019. Many of these laws were approved to address persistent sexual harassment issues in the workplace and elsewhere, as highlighted by the #MeToo movement. Below is an overview of the new sexual harassment laws, which affect employers and other businesses and professionals:

SB 1300 – Revisions to California’s Sexual Harassment in Workplace Law – FEHA

This law amends the California Fair Employment and Housing Act (FEHA). The FEHA makes it unlawful for an employer to engage in harassment of an employee. SB 1300 expands upon existing law by adding new Government Code Section 12923, which states the following about the Legislature’s intent concerning FEHA harassment claims:

• ~ The Legislature approves the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems(1993) 510 U.S. 17: 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 is enough to show that the “harassment so altered working conditions as to make it more difficult to do the job.” (Id. at 26).
• ~ A single incident of harassment is enough to create a triable issue of fact about the existence of a hostile work environment if the harassment unreasonably interfered with the employee’s work performance. The Legislature rejects the Ninth Circuit’s opinion in Brooks v. City of San Mateo(2000) 229 F.3d 917 and shall not be used in determining severe or pervasive conduct under FEHA.
• ~ A discriminatory remark, even if made by a non-decisionmaker, may be relevant evidence of discrimination. The Legislature affirms the decision in Reid v. Google, Inc.(2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine.”
• ~ 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. The Legislature disapproves of any language or holding to the contrary in Kelley v. Conco Companies(2011) 196 Cal.App.4th 191.
• ~ Harassment cases are rarely appropriate for disposition on summary judgment. The Legislature affirms 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.”

In addition, SB 1300 further expands upon the FEHA by amending Government Code Section 12940 to include the following new terms:

• ~ Employers may be liable for all forms of unlawful harassment by nonemployees (not just sexual harassment) if the employer knows or should have known about the conduct and fails to take immediate and appropriate corrective action.
• ~ Employers are prohibited from requiring employees to execute a release of a FEHA claim or to sign a nondisclosure agreement as a condition of employment or in exchange for a raise or bonus.(This prohibition does not apply to a negotiated settlement agreement to resolve an underlying claim filed by an employee in court, administrative agency, alternative dispute resolution forum, or internally through the company’s internal complaint process).
• ~ Employers are authorized (but not required) to provide bystander intervention training to its employees to provide practical guidance on how to recognize problematic behaviors in the office and how to take appropriate action.
• ~ Prevailing defendants in a FEHA action are prohibited from being awarded attorney’s 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.

SB 224 – Sexual Harassment Liability In Non-Employment Matters

The enactment of SB 224 expands who can be held liable for sexual harassment in non-employment matters. California Civil Code Section 51.9, which imposes sexual harassment liability in non-employment legal matters, previously required the plaintiff to prove an existing business, service, or professional relationship between the parties and an inability by the plaintiff to easily terminate the relationship. SB 224 amends Civil Code Section 51.9 to add that the plaintiff can prove that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship, and it eliminates the element that required plaintiff to prove plaintiff’s inability to easily terminate the relationship.

The bill also adds as examples of individuals who may be subject to liability: an investor, elected lobbyist, director, and producer. This list adds to the examples previously listed, including: physician, psychotherapist, dentist, attorney, real estate agent, and executor, and landlord.

SB 820 – Restricting Confidentiality Clauses in Sexual Harassment Settlements

SB 820 adds new Code of Civil Procedure Section 1001, which prohibits in settlement agreements nondisclosure clauses concerning civil or administrative complaints of sexual assault, sexual harassment, and workplace sex discrimination or harassment. Settlement payment amounts can remain confidential, as well as the claimant’s identity, if the claimant has requested anonymity and the defendant is not a government agency or public official.

AB 3109 – Banning Contract Waivers Of Victim’s Right to Testify

AB 3109 adds Civil Code Section 1670.11, which makes void and unenforceable a contract provision that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning criminal conduct or sexual harassment by the other party or their agents or employees, if required by court order, subpoena, or administrative or legislative request.

SB 1343 – Employer Sexual Harassment Training Requirements

SB 1343 amends Government Code Section 12950 and 12950.1 to require employers with five (5) or more employees to provide at least two (2) hours of sexual harassment training to supervisory employees and at least one (1) hour of sexual harassment training to nonsupervisory employees by January 1, 2020, and once every two (2) years thereafter. Under this law, the California Department of Fair Employment and Housing (DFEH) will develop 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace, and post these courses on the DFEH website for use by employers and the public at large.

SB 970 – Human Trafficking Awareness Training Requirements

SB 970 adds Government Code Section 12950.3 to require hotel and motel employers to provide at least 20 minutes of classroom or other interactive training regarding human trafficking awareness to each employee who is likely to interact or come into contact with victims of human trafficking by January 1, 2020, and once every two years thereafter. Employees who must receive training include, without limitation, those who work in a reception area, perform housekeeping duties, help customers in moving their possessions, or drive customers.

AB 2338 – Sexual Harassment Education by Talent Agencies

AB 2338 adds Article 4 to the Labor Code (Sections 1700.50 to 1700.54) to require talent agencies to provide educational materials on sexual harassment prevention, retaliation, and reporting resources, and nutrition and eating disorders, to its artists, in the language understood by each artist, within 90 days of agreeing to represent the artist. Talent agencies must retain records for three years confirming that educational materials were provided.

AB 3082 – Sexual Harassment Education for In-Home Support Services (IHSS)

AB 3082 adds Welfare and Institutions Code Section 12318 to require the Department of Social Services to develop or identify standard educational materials about sexual harassment and prevention for IHSS providers and recipients. On or before September 30, 2019, the Department of Social Services must provide a copy of these educational materials, along with its proposed method to collect data on the prevalence of sexual harassment within the IHSS program, to the Legislature.

Contact us for more information about the enactment of the new laws and how they may impact your business operations. You may need to revise employment policies and procedures to comply with the new requirements.