California enacted several new laws for 2019 relating to sexual harassment. We will examine some of these new laws in the coming weeks. The first and most important bill enacted was Senate Bill 1300. SB 1300 changes and broadens the Fair Employment and Housing Act. The Legislature here sends a clear message: harassment is injustice. The Legislature charges employers with stopping harassment promptly, broadens what categories are protected, and gives courts guidance as to how FEHA cases are to be adjudicated.
New: “Other” Harassment Prohibited
The Fair Employment and Housing Act (“FEHA”) already contains robust protections against sexual harassment, including harassment by nonemployees where the employer knows or should know yet fails to take immediate corrective action. SB 1300 expands this non-employee-harasser protection from just “sexual harassment” to “other harassment”.
“Other harassment” is here used as shorthand for including all the other protected categories: “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” (Gov Code § 12940(j)(1).) In other words, harassment is now explicitly prohibited based on all these protected categories.
Religious creed harassment? → FEHA violation.
Age harassment? → FEHA violation.
Gender expression harassment? → FEHA violation.
Do not harass anyone based on any protected category — simple. Employers: do not permit your employees/interns/applicants/ to be harassed based on any protected category, no matter how you may learn of it and no matter who you learn is doing the harassing. (Remember, the employer’s obligation is to take “all” reasonable steps to prevent harassment from occurring.)
New: FEHA Release or Non-Disclosure of Harassment May Not Be Exchanged for Raise/Bonus/Continued Employment
The title here is pretty self-explanatory. An employer cannot ask an employee to release FEHA rights or agree to keep silent about prior FEHA violations, in exchange for “ordinary employment” types of consideration, like raises, bonuses, or allowing employment to continue. If this is done, the agreement will be deemed unenforceable as against public policy.
New: Defendants Cannot Recover Costs Unless FEHA Lawsuit Was Frivolous/Unreasonable/Groundless
Under SB 1300, employees have far less risk of facing a bill from the employer’s lawyers if the employee does not win.
FEHA already protected employees who sue and lose from being exposed to a defense-side fee award unless the action was “unreasonable, frivolous, or vexatious” (Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1389.) However, under prior law there still existed some risk of exposure to a costs bill in certain circumstances, such as a declined statutory offer to compromise.
Now, employees are afforded more protection for asserting rights in good faith under FEHA. Under the amendments of SB 1300, defendants are prohibited from being awarded fees and costs absent a finding that employee’s claims were frivolous, unreasonable, or groundless. This is a fairly high standard. Given the important public policies underlying FEHA, and the resource and information disparities between employers and workers, this is an important change for vindication of public policy.
New: Legislature Adopts 5 FEHA Rules
SB 1300 added a new section into FEHA at Government Code § 12923. These five paragraphs state the Legislature’s “2019-edition” instructions on how courts are to decide cases under FEHA. Each of these five is on a different case. Each paragraph has strong support for individuals vindicating civil rights in the employment context. Here are the 5:
a) The statute here actually quotes Justice Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems from 1993. Harassment need not be demonstrated by diminished performance. Instead, it is enough to show the job became more difficult. Consider this a much-deserved hat tip to RBG.
b) “Single-incident” harassment can be actionable, if sufficiently severe. Rejects a Ninth Circuit holding on this.
c) Rejection of “stray remarks” doctrine and confirming Reid v. Google, Inc. (2010) 50 Cal.4th 512. Explicitly recognizes that hostile environments are shown by “totality of the circumstances”.
d) Standards as to what is harassment should not vary by type of workplace. Disapproves Kelley v. Conco Companies (2011) 196 Cal.App.4th 191 to the extent that its language/reasoning/holding may be contrary.
e) Harassment cases are rarely appropriate for disposition on summary judgment. Affirms Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 that such issues are “not determinable on paper.” This is an excellent amplification of Nazir — fact issues are for juries.
Next, we look at SB 224’s amendment of the Unruh Act’s Anti-Harassment laws.
If you have a harassment issue and think you would benefit from speaking with an attorney, please contact us. We look forward to talking with you.
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