23 Oct

California Bolsters its Sexual Harassment Laws in the Wake of the #MeToo Era

by and , on Articles, Employment Litigation

California Bolsters its Sexual Harassment Laws in the Wake of the #MeToo Era

By: Jessica Yang and Natasha Niemeyer

California Governor Jerry Brown recently signed into law a number of bills in response to the #MeToo movement that will significantly impact employer obligations and employee rights. This trio of bills makes it easier for employees to bring sexual harassment claims, while at the same time making it more difficult for employers to resolve them and imposing additional training requirements.

Employers should take these changes into account when confronted with allegations of sexual harassment and when negotiating settlement and severance agreements. Employers should also begin developing sexual harassment training programs to comply with the new requirements.

CALIFORNIA EXPANDS HARASSMENT CLAIM PROTECTIONS

Senate Bill 1300 (SB 1300) amends the California Fair Employment and Housing Act (FEHA) in the most comprehensive and far-reaching bill of all those recently signed in response to the #MeToo movement. Taking effect on January 1, 2019, SB 1300 expressly confirms and codifies recent court decisions in the wake of the #MeToo, making it nearly impossible for employers to defeat harassment claims on summary judgment. These significant changes are highlighted below.

Conduct that Simply Makes it More Difficult for Employees to Perform Their Jobs May Constitute Actionable Harassment. SB 1300 formally affirms Justice Ruth Bader Ginsburg’s standard in her concurrence in the Harris v. Forklift Systems (1993) 510 U.S. 17 decision, that sexual harassment plaintiffs “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.”

Harassment No Longer Needs to Be Severe or Pervasive to Be Actionable. SB 1300 effectively rejects the Ninth Circuit’s severe and pervasive standard of determining whether harassment was actionable under the FEHA in Brooks v. City of San Mateo (2000) 229 F.3d 917 –  instead, a single incident of harassment may be enough to create a triable issue of fact (and defeat summary judgment) if it “unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive working environment.”

Isolated, Stray Remarks May Support the Existence of a Hostile Work Environment.SB 1300 affirms the California Supreme Court’s rejection of the stray remarks doctrine in Reid v. Google, Inc. (2010) 50 Cal.4th 512, stating that isolated, stray remarks, even if not directed at the plaintiff, should be viewed in the totality of the circumstances to determine if it a hostile work environment or harassing conduct exists.

The Legal Standard for Sexual Harassment Does Not Vary by Type of Workplace. SB 1300 also rejects the view enunciated in Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, that different workplaces could be held to different standards of sexual harassment. By rejecting this view, the Legislature made it clear that it is irrelevant that some workplace environments may be prone to more harassment than others.

Employer Releases and Non-Disparagement Agreements Limited. SB 1300 makes it unlawful for employers to “in exchange for a raise or bonus, or as a condition of employment or continued employment” require employees to release FEHA claims or rights. Such agreements cannot contain statements that employees do not have claims or injuries against the employer or are releasing their right to file civil complaints against the employer, nor can employees enter into non-disparagement agreements, settlement agreements, or other similar documents depriving employees of the right to disclose unlawful acts such as sexual harassment in the workplace in exchange for the above. However, this provision does not apply to a “negotiated settlement agreement to resolve an underlying claim under [FEHA] that has been filed by an employee in court, before an administrative agency, alternate dispute resolution forum, or through an employer’s internal complaint process.”

Employer Liability for Harassment of Employees by Non-Employees No Longer Limited to Sexual Harassment. SB 1300 amends FEHA to add that employers can now be liable for any type of actionable harassment, not just sexual harassment, committed by employees and non-employees (such as customers, vendors, and other parties) if the employer knew or should have known about the harassment.

Legislature Confirms that Harassment Cases Are Rarely Inappropriate for Disposition on Summary Judgment. The codification of this proposition will likely make these claims near impossible for employers to defeat by way of a dispositive motion.

NEW RESTRICTIONS ON PREVENTING DISCLOSURE OF SEXUAL HARASSMENT ALLEGATIONS

Governor Brown also passed Senate Bill 820 (SB 820), or the Stand Together Against Non-Disclosures Act (STAND Act), in response to the #MeToo Movement’s attack on the use of non-disclosure agreements in sexual harassment cases that purportedly enabled alleged perpetrators to continue to victimize additional individuals because factual information relating to claims of sexual assault or harassment could not be disclosed. Currently, the law allows non-disclosure provisions in settlement agreements that not only prevent individuals from disclosing amounts settled for, but also the underlying facts surrounding the workplace harassment claim. Historically, this allowed employers to avoid bad publicity due to sexual harassment allegations and did not have to be concerned about the fact that the details of settlement agreements and their mere existence can create the perception of guilt.

SB 820 will also go into effect on January 1, 2019 and will void any provisions in settlement agreements entered into after this date that restrict disclosure of any factual information concerning claims of sexual assault, sexual harassment, workplace sexual harassment, workplace sex discrimination, failure to prevent workplace sexual harassment or discrimination, and retaliation against someone for reporting sexual harassment or discrimination that are filed in civil or administrative actions. SB 820 also prohibits such provisions entered by a court via stipulations. However, SB 820 does allow non-disclosure agreements to continue prohibiting disclosure of amounts paid, and the claimant’s identity or facts that may reveal the claimant’s identity but only upon a claimant’s request for anonymity (unless the alleged perpetrator is a government agency or public official). The alleged perpetrator, however, cannot request such anonymity. Employers should therefore anticipate that factual details relating to settlements of sexual harassment and other similar claims may be discussed openly with other employees, the press, or through social media and other outlets. However, based on SB 820’s language that it applies to “claims filed in a civil action or complaint filed in an administrative action,” non-disclosure provisions in settlement agreements entered at the pre-litigation phase appear to may still be allowed. SB 820’s prohibition of non-disclosure provisions also only applies to settlement agreements entered into after January 1, 2019, and therefore, any provisions in current or previous settlement agreements will not be affected.

Given these non-disclosure provisions will be considered void as a matter of law and against public policy, and the approaching January 1, 2019 mandate, employers should remove such confidentiality provisions from their settlement agreements if they have the effect of preventing disclosure of facts surrounding claims of sexual harassment or assault. SB 820 may impede informal resolutions as harassers who feel they have been unfairly accused may be more hesitant to cooperate in settlement agreements where their names and accusations can still be made public.

ADDITIONAL SEXUAL HARASSMENT PREVENTION TRAINING REQUIREMENTS

With the passage of SB 1343, California employers with at least 5 employees must provide sexual harassment prevention training to all supervisory and non-supervisory employees (including seasonal and temporary workers), a requirement previously only imposed on larger employers with more than 50 employees.

By January 1, 2020, employers with 5 or more employees must provide 2 hours of sexual harassment prevention training and education to supervisors and 1 hour to non-supervisors. The training may be conducted in smaller increments if they cumulatively meet the hourly requirements and may be done on an individual or group basis. All employees must thereafter receive training every 2 years. Employers who provide the required training after January 1, 2019 are not required to comply with the January 1, 2020 deadline.

By January 1, 2020, covered employers must provide permanent employees with the requisite training within 6 months of their beginning work for the employer, and every 2 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. For temporary employees placed with a client by staffing agencies or temporary services employers as defined by the California Labor Code, the training must be conducted by the staffing agency or temporary services employer, not the client.

The training must include information and practical guidance about the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment, as well as remedies available to victims of sexual harassment in the workplace. The training should also address harassment based on gender identity, gender expression, and sexual orientation. The training must also include practical examples aimed at instruction supervisors in the prevention of harassment, discrimination, and retaliation, and must be presented by trainers or educators with knowledge and expertise in the prevention of the same.        

SB 1343 also requires the Department of Fair Employment and Housing (DFEH) to develop compliant interactive supervisory and non-supervisory training courses and make them available on its website, though employers may also develop their own training platforms as long as they comply with the law’s requirements. DFEH must also have sexual harassment prevention informational posters and fact sheets on its website.

Employers who were previously not required to conduct such training should thus begin creating and implementing sexual harassment prevention training programs, and those who already had such programs in place should re-examine their programs to comply with these additional requirements.