As with many other states following events in the news, the California state legislature has aggressively been passing a slew of bills to prevent sexual harassment in the workplace, including within the state legislature itself.
California Governor Edmund G. Brown Jr. signed a package of bills on September 30 aimed at protecting and supporting women, children, and working families across California, including many addressing sexual harassment and discrimination in the workplace.
In addition to prohibiting sexual harassment and discrimination, the bills provide new sexual harassment training requirements; address professional liability, settlement agreements, and enforcement; as well as strengthen whistleblower protections by adding new protections for those working in the state Legislature.
Prohibited discrimination and harassment
Under California’s Fair Employment and Housing Act (FEHA), it is an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment. FEHA also makes harassment by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.
Prohibited harassment includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
Employers are required to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
Any type of harassment. Under the FEHA, an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Senate Bill 1300 would change the law to apply with respect to any type of harassment prohibited under the FEHA.
Bystander intervention training. The Act requires employers with 50 or more employees to provide at least two hours of training and education regarding sexual harassment to all supervisory employees within six months of their assumption of a supervisory position and once every two years. This bill would also authorize an employer to provide bystander intervention training to employees that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when such behaviors are observed. Training and education may include exercises to provide bystanders with skills and confidence to intervene and to provide resources to call upon for supporting their intervention.
Nondisparagement and nondisclosure agreements. Employers will be prohibited, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
In a civil action, a prevailing defendant would be prohibited from being rewarded 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.
Evidentiary impact. In addition, new law is added to provide that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if such conduct has unreasonably interfered with the person’s work performance or created an intimidating, hostile, or offensive working environment. The existence of a hostile work environment would depend on the totality of the circumstances; a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be considered relevant, circumstantial evidence of discrimination.
Under the FEHA, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of civil rights. Senate Bill 224 makes the Department also responsible for the enforcement of sexual harassment claims. S.B. 224 also makes it an unlawful practice to deny or aid, incite, or conspire in the denial of rights of persons relating to sexual harassment.
Professional liability. In addition, Senate Bill 224 amends the Civil Code to provide that a person is liable in a cause of action for sexual harassment when a plaintiff proves certain elements where there is a business, service, or professional relationship between the plaintiff and a defendant, or where the defendant holds himself or herself out as being able to help the person establish a business, service, or professional relationship with the defendant or a third party. The bill would include an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment.
Contracts, settlement agreements
Waiver of right of petition or free speech prohibited. Assembly Bill 3109 makes a provision in a contract or settlement agreement entered into on or after January 1, 2019, void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
Nondisclosures and confidentiality agreements. California law prohibits a provision in a settlement agreement that prevents the disclosure of factual information relating to a civil action with a factual foundation establishing a cause of action for civil damages for certain sexual offenses. This law is amended by S.B. 820 to prohibit a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, including workplace harassment or discrimination based on sex, that are filed in a civil or administrative action. A provision in a settlement agreement that prevents the disclosure of factual information related to the claim entered into on or after January 1, 2019, is void as a matter of law and against public policy.
An exception would be made to shield the identity of a claimant and facts that could lead to the discovery of the person’s identity if such provision is included within the settlement agreement at the claimant’s request.
More mandatory training. The FEHA requires employers with 50 or more employees to provide at least two hours of training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position, and then every two years after that. This requirement is amended by Senate Bill 1343 to instead require an employer who employs five or more employees, including temporary or seasonal employees, to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and then once every two years after that.
Online training courses. The Department of Fair Employment and Housing will be required to develop or obtain one-hour and two-hour online training courses on the prevention of sexual harassment in the workplace and to post the courses on the Department’s Internet Web site. The bill would also require the department to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the Department’s Internet Web site.
State legislature. A.B. 2055 requires state legislative ethics committees for each house to include in its required orientation course, which covers laws relating to ethical issues and lobbying, information on each house of the Legislature’s policies against harassment, including sexual harassment, in connection with lobbying issues. Each member and each designated employee of the Legislature must attend at least one course in each biennial session.
Minors in the entertainment industry. A.B. 2338 requires talent agencies to provide educational materials on sexual harassment prevention, retaliation, and reporting resources that include, at a minimum, components specified in the Department of Fair Employment and Housing’s Form 185. Licensees may provide training electronically, materials must comply with language requirements and be in the language the artist understands, and agencies must keep records for three years confirming that educational materials on sexual harassment prevention, retaliation, and reporting resources have been signed by the adult artist.
For minors working in the industry, prior to the issuance of a work permit, the parent or legal guardian of a minor between the ages of 14 and 17 must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. Licensees must request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.
As part of the application for license renewal, in order to establish that the requirements of this article are met, a licensee shall confirm to the Labor Commissioner that it has and will continue to make available educational materials to adult artists in compliance. Violators could be assessed civil penalties of $100 for each violation.
Law enforcement training. Under A.B. 2504, the Commission on Peace Officer Standards and Training is required to develop and implement a course of training regarding sexual orientation and gender identity minority groups in California. The course must be incorporated into the basic training requirements for law enforcement officers and dispatchers, including the terminology used to identify and describe sexual orientation and gender identity, and how to create an inclusive workplace within law enforcement for sexual orientation and gender identity minorities. The training would apply to law enforcement officers, administrators, executives, and dispatchers.
In-home support services. This new law is added to the Welfare and Institutions Code to require the State Department of Social Services, in consultation with interested stakeholders, to develop or otherwise identify standard educational material about sexual harassment and prevention to be made available to IHSS providers and recipients, and to develop or otherwise identify a proposed method for uniform data collection to identify the prevalence of sexual harassment in the program. The Department is to provide a copy of the educational material and proposed method of uniform data collection to the budget and policy committees of the state Legislature on or before September 30, 2019.
New whistleblower protection law in California protects state legislative employees who call out sexual harassment and discrimination.
Whistleblower protections. Effective September 30, 2018, the “Legislative Discriminatory Harassment Retaliation Prevention Act,” enacted by S.B. 419, protects employees in the state legislature from being discharged, expelled, or otherwise discriminated against for opposing any practice prohibited under the California Fair Employment and Housing Act; for opposing any practice actionable under the Unruh Civil Rights Act or law relating to sexual harassment liability where there is a business, service or professional relationship between a plaintiff and defendant; or for filing a complaint, testifying, or assisting in any proceeding relating to a complaint of discriminatory harassment.
Retention period for complaints. In addition, the law requires each house of the state Legislature to implement a system to maintain a record of each discriminatory harassment complaint made to that house for a period of at least 12 years after the complaint is made.
Violators would be subject to a civil fine not to exceed $10,000, which would be in addition to any fine imposed under other state or federal law.
Enacted earlier this year on February 5, the “Legislative Employee Whistleblower Protection Act” was enacted by A.B. 403. This law prohibits a member of the Legislature or any legislative employee from using their position or influence to interfere with the right of a legislative employee to make a good-faith protected disclosure that a Member of the Legislature or a legislative employee has engaged in, or will engage in, activity that may constitute a violation of law, including sexual harassment, or a violation of a legislative standard of conduct. An entity that interferes with, or retaliates against, a legislative employee’s exercise of the right to make a protected disclosure would be subject to a civil penalty of $10,000 and imprisonment in county jail for a period not to exceed one year. S.B. 419 amends definitions under this Act.
Except where a specific date is noted, these measures become effective on January 1, 2019.
Governor Brown also vetoed several other bills relating to harassment and discrimination:
- A.B. 1867, relating to recordkeeping requirements of allegations of sexual harassment, citing an excessive expansion of time for retention as unwarranted;
- A.B. 2713, which would have required the California Department of Human Resources and the Department of Fair Employment and Housing to create and make public annual reports on sexual harassment complaints in state departments, citing current management practices as sufficient in taking the necessary steps to assure a suitable working environment;
- S.B. 1223, proposing the Department of Industrial Relations convene an advisory committee to recommend minimum standards for a harassment and discrimination prevention policy and training program in the construction industry, citing that such task would be better placed with the Department of Fair Employment and Housing, which is already charged with enforcing provisions relating to sexual harassment and enforcement;
- A.B. 1870 would have extended deadlines for filing a complaint from one to three years, citing that current filing deadlines encourage prompt resolution while memories and evidence are fresh and ensure unwelcome behavior is promptly reported and halted;
- A.B. 2079, related to janitorial workers, proposing sexual violence and harassment prevention training, citing regulations that were already in the process of being created for such training by the Labor Commissioner pursuant to the Property Service Worker Protection Act (A.B. 1978, L. 2016);
- A.B. 3080, related to discrimination and enforcement, prohibiting an employee or job applicant from being required to waive his or her right to a judicial forum as a condition of employment or continued employment, citing recent court decisions relating to arbitration that would make the bill in violation of federal law;
- A.B. 3081 would have created a new joint liability between labor contractors and client employers, prohibit retaliation, and establish a 30-day notice requirement, citing most of the provisions in the bill as contained in current law and would therefore be unnecessary.
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