Anti-Harassment provisions are a theme in 2019’s new employment laws. We previously discussed SB 1300, which contains a number of important revisions to California employment law, particularly regarding harassment. In this post, we turn to another important development in California harassment law.
The Unruh Act and FEHA Both Contain Protections.
The Unruh Act contains a useful quiver of laws that can be used to fight sexual abuse/discrimination/harassment in cases occurring: 1) at California businesses and/or 2) occurring in the context of professional relationships. (See California Civil Code 51, et seq.) This law has both treble damages and an attorneys’ fee provision to aid enforcement. (See Civil Code Section 52)
The Fair Employment and Housing Act (“FEHA”) already prohibits harassment in employment relationships.
SB 224: Amends the Unruh Act’s Anti-Harassment Elements.
Effective at the start of 2019, SB 224 changes the elements of harassment of the Unruh Act (elements are what plaintiffs must prove to win at trial).
Harassment was previously barred by the Unruh Act where the plaintiff could show they were “unable to easily terminate the relationship” causing the harassment.
SB 224 changes harassment law under Unruh to eliminate the “can’t easily terminate” element. SB 224 also fills in some gaps for other business relationships with inherent power disparities. The new categories are bolded below:
(1) There is a business, service, or professional relationship between the plaintiff and defendant or the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party. Such a relationship may exist between a plaintiff and a person, including, but not limited to, any of the following persons:
(See California Civil Code Section 51.9.)
(A) Physician, psychotherapist, or dentist. For purposes of this section, “psychotherapist” has the same meaning as set forth in paragraph (1) of subdivision (c) of Section 728 of the Business and Professions Code.
(B) Attorney, holder of a master’s degree in social work, real estate agent, real estate appraiser, investor, accountant, banker, trust officer, financial planner loan officer, collection service, building contractor, or escrow loan officer.
(C) Executor, trustee, or administrator.
(D) Landlord or property manager.
(F) Elected official.
(H) Director or producer.
(I) A relationship that is substantially similar to any of the above.
DFEH Empowered to Investigate Unruh Harassment.
Finally, this bill authorizes the Department of Fair Employment and Housing to investigate harassment claims brought under the Unruh Act. This empowers the DFEH to investigate and enforce these anti-harassment rules.
Takaways and Key Points.
First, elimination of the element “easily terminate” is important here. This change was made in the Assembly Judiciary Committee because:
“…even if a business, professional, or service relationship is easy to terminate, there is a strong policy argument to be made that a defendant still be liable for a cause of action for sexual harassment in these situations. The logic of requiring a plaintiff to show that the relationship could not be easily terminated is analogous to blaming the victim, essentially implying that the victim could have easily ended it, so is not entitled to redress for what happened.” … “[I]t is reasonable to expect that a professional person will not sexually harass anyone with whom they have a business, professional, or service relationship, regardless of how easy or hard it is to end the relationship.”06/29/18- Assembly Judiciary Committee Analysis
Further, some employment practitioners may have believed this was simply a difficult and/or unnecessary showing without many guideposts as to what constitutes “easily”. In any case, as the Legislature found, the burden of terminating the relationship should not be foisted onto the person subjected to the harassment.
Second takeaway: inclusion of persons “holding themselves out” as being able to help the plaintiff. This defines a broad additional class of relationships similar to anti-harassment protections already extended to applicants for employment under FEHA.
SB 224 represents an important refinement of harassment protections extended by the Unruh Act.
Next, we look at some recent attempts to limit gag clauses in the context of harassment based on sex.
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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