Propelled by the #MeToo movement, thousands of California employees have come forward over the last year with sexual harassment complaints against their co-workers, supervisors, managers, and even company officers. In addressing this epidemic of new claims, state lawmakers recently enacted a number of laws that address sexual harassment in the workplace by, among other things, strengthening training requirements, enabling victims to speak out, and providing guidance to the courts to ensure that the appropriate legal standards are fairly applied.

Sexual Harassment Training – Senate Bill 1343

First, Senate Bill (“SB”) 1343 now requires employers of five or more employees—including seasonal and temporary employees—to provide two hours of sexual harassment training to all supervisory employees once every two years. Prior to SB 1343, employers with 50 employees had to provide such training. SB 1343 also requires employers to provide sexual harassment training once every two years to non-supervisory employees, but only one hour is required for these non-supervisors.

Employers must provide this training by January 1, 2020.

Secret Settlements of Sexual Harassment Claims – Senate Bill 820

Settlement agreements that disclose certain confidential information are often called “secret settlements,” and they are disfavored when the public has a strong interest in the underlying civil action. Seeking to ensure that accused sexual harassers are made known to the public, SB 820 makes secret settlements for acts of sexual harassment void as a matter of law and against public policy.

Specifically, the bill prohibits settlement agreements (entered into on or after January 1, 2019) from containing provisions that prevent the disclosure of factual information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. However, the bill permits settlement agreements to preclude the disclosure of the amount paid in such settlements and protects the claimant’s identity, so long as the claimant requests anonymity and the opposing party is not a government agency or public official.

Plaintiffs may retain the right to request provisions in settlement agreements that keep their names anonymous. Attorneys who fail to comply with this law are subject to discipline by the State Bar of California.

Government Code Section 1300

Also recently enacted, on September 30, 2018, California Government Code Section 1300 (“Section 1300”) amended the Fair Employment and Housing Act (“FEHA”) by adding a new section—Government Code Section 12923—and establishing other new rules concerning sexual harassment claims.

Government Code Section 12923 declares that the purpose of sexual harassment laws is “to provide all Californians with an equal opportunity to succeed in the workplace.” To that end, Section 12923 affirms and rejects certain court decisions:

1.     Reasonable Person Standard Affirmed

Legislators approved United States Supreme Court case Harris v. Forklift Systems, which clarified the reasonable person standard in a workplace sexual harassment case. The plaintiff alleged that the company’s president made targeted, unwanted sexual innuendos toward her and insulted her because she was a woman. The lower courts held that such conduct did not rise to the level of sexual harassment because it was not severe enough to affect the plaintiff’s psychological well-being or lead her to suffer an injury.

The Supreme Court, however, reversed. In her concurrence, Justice Ruth Bader Ginsburg stated that, “a 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.” (Emphasis added.)

2.     Severe or Pervasive Standard – A Single Incident is Enough

To state a cognizable claim for sexual harassment, the conduct must be so “severe or pervasive” insofar as to create a hostile work environment. The California legislature rejected the Brooks v. San Mateo holding that a single incident of harassing conduct must be “extremely severe” to support a sexual harassment claim. 229 F.3d 917 (2000).

In Brooks, the plaintiff alleged that her co-worker touched her stomach and commented on its softness and sexiness. During the same shift, the co-worker forced his hand underneath the plaintiff’s sweater and bra to touch her breast and made a sexually inappropriate comment. The court found that the alleged facts did not support a sexual harassment claim because the encounter between plaintiff and her co-worker was “a single occasion for a matter of minutes…that did not impair [plaintiff’s] ability to do her job in the long-term” because the incident was “brief,” the co-worker was immediately placed on administrative leave, and the plaintiff did not suffer any physical injuries.

California lawmakers rejected the Brooks holding and stated that Brooks shall not be used in determining what kind of conduct is sufficiently “severe or pervasive.” Instead, now, “a single incident of harassing conduct” is sufficient to create triable issues of fact regarding the existence of hostile work environment harassment.

3.     Legal Standard for Sexual Harassment Does Not Vary by Workplace

The legislature also disapproved of using Kelley v. Conco Companies to support different standards for hostile work environment harassment depending on the type of workplace. In Kelley, the plaintiff’s supervisor subjected him to a series of sexually demeaning comments and gestures, followed by similar comments by co-workers and physical threats. The court determined that the conduct was not actionable because taking into account the “environment in which this incident took place, sexually taunting comments by supervisors and employees were commonplace, including gay innuendo, profanity, and rude, crude and insulting behavior.”

Government Code Section 12923 rejects this holding—stating that “it is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past…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.”

4.     Stray Remarks Doctrine Rejected

Section 12923 rejects the “stray remarks doctrine,” which deemed statements made outside of the decision-making process “stray” and therefore irrelevant and insufficient in determining whether sexual harassment occurred. Now any discriminatory remarks, even if not made directly in the context of an employment decision or uttered by a decisionmaker, may be relevant, circumstantial evidence of discrimination.

5.     Hostile Work Environment Cases Not Appropriate for Summary Judgement

Finally, the Legislature affirmed the decision in Nazir v. United Airlines, Inc., which found that hostile work environment cases cannot be disposed of on summary judgment.

6.     Continuation of Section 1300

Section 1300 also provides the following:

• Expands an employer’s potential FEHA liability for acts of non-employees to all forms of unlawful harassment (not just sexual harassment);

• Prohibits employers from requiring employees to sign a release of FEHA claims or a document prohibiting disclosure of information about unlawful acts in the workplace; and

• Limits defendants’ recovery of attorney’s fees and costs to only when the court finds the action was frivolous, unreasonable, or groundless.

These new laws—while made in an effort to protect harassment victims—will provide new challenges for employers when defending sexual harassment claims. It is important to have competent employment counsel on your side to assist when drafting applicable policies and procedures, and to provide the requisite training to all supervisors and eventually, all employees.

If you have any questions concerning these laws and your obligations, please reach out to an MLG attorney to assist you.

 

Author: Kymberly LeGolvan, Associate.

The Maier Law Group helps companies ensure that their policies and practices comply with the relevant workplace regulations.  Please contact us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.