California Gov. Jerry Brown recently signed legislation that will tighten the legal standard for sexual harassment in the workplace, a change advocates praised as helping to bring justice to victims of such harassment.
The bill, SB 1300, amends the California Fair Employment and Housing Act to prohibit employees from being required to sign agreements preventing the disclosure of illegal acts, including sexual harassment, in the workplace. It also bars employers from requiring employees to release claims under FEHA in exchange for a bonus, raise or condition of employment.
In the past, employers could be held liable for the sexual harassment of workers, interns, volunteers and contractors by non-employees if the employer knew, or should have known, about the conduct and failed to take appropriate action. SB 1300 expands the acts for which an employer may be held liable to include any act of harassment prohibited under FEHA.
The legislation also requires employers with 50 or more employees to provide at least two hours of training and education regarding sexual harassment to all supervisory employees. Such training and education must take place at least once every two years.
Rejecting, Approving Court Decisions
The legislation explicitly overturns prior court rulings that limited sexual harassment lawsuits.
For example, it rejects a 2000 ruling from the U.S. Court of Appeals for the Ninth Circuit to determine what conduct is sufficiently severe or pervasive to constitute a violation of FEHA. It states that a single incident of harassing conduct can be sufficient to create a triable issue regarding the existence of a hostile work environment. Advocates of the bill, including the Equal Rights Advocates, said the change addresses the “one free grope” standard.
The legislation expresses approval for U.S. Supreme Court Justice Ruth Bader Ginsburg’s concurring opinion in Harris v. Forklift Systems, a 1993 case in which the Supreme Court clarified the definition of a hostile or abusive work environment. Justice Ginsburg wrote that a plaintiff doesn’t need to prove his or her productivity suffered as a result of the harassment. “It suffices,” the justice wrote, “to prove that a reasonable person subjected to the discriminatory conduct would find…that the harassment so altered working conditions as to make it more difficult to do the job.”
It also affirmed the rejection of the so-called stray remarks doctrine, stating a discriminatory remark may be circumstantial evidence of discrimination, even if it is not made in the context of an employment decision or by a person who is not a decision maker. In addition, the legislation states that harassment cases involve issues that are “not determinable on paper” and are rarely appropriate for disposition on summary judgment.
The bill is one of three that Gov. Brown signed recently that will create new obligations for California employers and make it easier for workers to bring claims for sexual harassment and discrimination in the workplace. Employers should review their anti-harassment policies to make sure they are in compliance with the new law and update any non-disclosure agreements.