New Laws Expand Employers’ Sexual Harassment Prevention Obligations

As the #MeToo Movement placed a glaring spotlight on the continuing problem of sexual harassment in the workplace, outgoing California Governor Jerry Brown signed several bills aimed at curbing harassment. All of them impact California employers, both public and private.

New Legal Standards for Proving Harassment

In the most sweeping revision of sexual harassment law in years, Senate Bill 1300 amended the Fair Employment and Housing Act to dramatically alter the standards a plaintiff must meet to make a successful claim of unlawful harassment. Substantive changes include:

  • A plaintiff need not prove that tangible productivity declined as a result of harassment, only that a “reasonable person” would find the harassment made it “more difficult to do the job.” The Legislature expressly rejected the “severe and pervasive” standard for harassment cases that applies under federal law and formerly under the FEHA. (Government Code § 12923(a).)
  • A single incident of harassing conduct is now sufficient to create 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. (Government Code § 12923(b).)
  • Recognizing courts’ recent rejection of the “stray remarks doctrine,” a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decisionmaker, may be relevant evidence of discrimination. (Government Code § 12923(c).)
  • Employers may be liable for the harassing conduct of nonemployees toward employees, applicants, unpaid interns, or volunteers, whether the harassment is based on sex or some other protected classification. (Government Code § 12940(j)(1).)
  • Employers may not, in exchange for a raise or bonus, or as a condition of employment, require the execution of a release of a claim or right under the FEHA; certain exceptions apply. (Government Code § 12964.5(a).)
  • While a prevailing plaintiff in a FEHA lawsuit is entitled to an award of attorney fees and costs, SB 1300 codifies longstanding case law holding that a prevailing defendant (i.e., employer) may not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when filed or that the plaintiff continued to litigate after it clearly became so. (Government Code § 12965(b).)

The likely (and intended) effect of these amendments is to make it easier for sexual-harassment plaintiffs to proceed with, and succeed in, litigation against employers.

Expanded Training Requirements

Governor Brown also signed SB 1343, which expands the scope of mandatory sexual-harassment-prevention training:

  • The FEHA formerly required only employers with 50 or more employees to provide sexual-harassment-prevention training to their supervisory employees. SB 1343 amends Government Code section 12950 to expand the training requirement to any employer with at least 5 employees in California, thus applying this obligation to thousands of smaller public agencies and businesses.
  • Covered employers must provide — as before — at least two hours of sexual harassment prevention training and education to all supervisory employees, and must provide by January 1, 2020 at least one hour of training to all non-supervisory employees. The training of all employees must be conducted at least once every two years thereafter.
  • Employers must provide sexual harassment prevention training to temporary or seasonal employees within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than 6 months. If a temporary employee is employed by a temporary services agency to perform services for clients, the training must be provided by the temporary services employer, not the client.

Limitations on Settlement Agreements

The former governor also signed SB 820, which prohibits broad confidentiality provisions in sexual-harassment settlement agreements. (Code of Civil Procedure § 1001.) This provision applies to agreements entered into on or after January 1, 2019 and covers not only sexual-harassment-related nondisclosure agreements, but agreements involving any workplace discrimination claims based on sex.

Impact on Employers

Public and private California employers should review their sexual-harassment-prevention training practices to ensure they comply with new requirements — in particular the new obligation to provide at least one hour of training this year to all non-supervisory employees. A “live” training, as opposed to an online module, is recommended to introduce these employees to these important concepts. Settlement agreements need to be carefully reviewed by legal counsel for compliance with the restrictions imposed under the new legislation.

Most important, employers must be even more vigilant when it comes to preventing, addressing, and correcting any incidents of discrimination or harassment, including seemingly minor remarks that may now be sufficient to create legal liability.

To schedule the training through our firm, or for other information about ever-expanding employer obligations, please contact an AALRR attorney.

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