Difficult Defense for California Sexual Harassment Claims

At the close of the 2017-2018 Legislative Year, Governor Brown signed a variety of bills relating to sexual harassment, including SB 1300. This new law makes various amendments to the Fair Employment and Housing Act (FEHA). The changes provide employees who claim they were harassed greater protections. They also increase the potential liability of employers and soften the standards for employees bringing sexual harassment claims. In addition, SB 1343 requires employers with five or more employees provide sexual harassment training to both supervisory and non-supervisory employees before the end of the year.

What is SB 1300?

SB 1300 makes additions and changes to various California Government Code sections governing unlawful employment practices, effective January 1, 2019. Among other things, the additions prohibit certain releases and agreements relating to sexual harassment claims, expand employers’ potential liability for harassment by non-employees, soften the standard a plaintiff must meet to prove and succeed on a harassment claim, and limit an employer’s ability to recover attorney fees in a harassment case, even when they prevail.

How does SB 1300 affect me?

Limitations on Employee Releases of Claims and Non-Disparagement Agreements

One of the changes brought about SB 1300 is that employers are now prohibited from requiring an employee execute either a release of FEHA claims or rights or a non-disparagement or other agreement precluding them from disclosing information about unlawful acts in the workplace (including but not limited to harassment) in exchange for a raise or bonus or as a condition of continued employment.

Single Incident of Harassment Is Enough to Create a Triable Issue Regarding Hostile Work Environment

Cal. Govt. Code section 12923(b), newly created by SB 1300, states that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive work environment.”

Lower Burden of Proof Under FEHA

To prevail on a sexual harassment claim, the burden on the plaintiff is now lower. In addition to the aforementioned provision regarding a single incident of harassing conduct being sufficient, legislature makes several other declarations of legislative intent in the new Govt. Code section 12923 regarding the appropriate standard for courts to apply in sexual harassment cases. They expressly adopt the standard set forth by Justice Ruth Bader Ginsburg, in her concurring opinion in Harris v. Forklift Systems, 510 U.S. 17 (1993). The legislature thereby declares that in a workplace harassment suit, the plaintiff is not required to prove their tangible productivity has decreased as the result of harassment; instead, it is sufficient they prove a reasonable person would find that being subjected to the discriminatory conduct alleged altered the working conditions such that it made the job more difficult.

Section 12923 also rejects the Ninth Circuit’s opinion in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), stating that the opinion shall not be used to determine what kind of conduct is sufficiently severe or pervasive to constitute a violation of FEHA. Additionally, the statute rejects the idea that the legal standard for sexual harassment varies from workplace to workplace, as stated in Kelley v. The Conco Cos., 196 Cal. App. 4th 191 (2011).

The legislature also affirms the California Supreme Court’s rejection of the “stray remarks doctrine,” as set forth in Reid v. Google, Inc., 50 Cal. 4th 512 (2010). This doctrine had previously allowed for courts to assess in isolation, and essentially deem irrelevant, otherwise discriminatory or harassing remarks that were made by non-decision makers and unrelated to the challenged employment decision. This means such remarks are now to be considered in the totality of the circumstances and can constitute evidence of harassment or discrimination.

Lastly, Section 12923 states harassment cases are rarely appropriate for disposition on summary judgement, affirming the decision in Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243 (2009) that cases involving issues surrounding hostile working environments are not capable of being determined on paper. This means employers are now faced with more difficulty in defending these and other types of harassment claims.

Employer’s Liability for Non-Employee Actions and Bystander Training

SB 1300 also amends the Cal. Govt. Code to expose an employer to potential liability for any type of harassment prohibited by FEHA that is committed by non-employees if the employer knew or should have known of the harassment and failed to take corrective action.

The new Govt. Code section 12950.2 further provides that an employer may provide “bystander intervention training.” Said training is described to include information and guidance for bystanders to recognize problematic behavior and motivate them to take action.

Limitations a Defendant’s Ability to Recover Attorneys’ Fees

Effective January 1, 2019, if a defendant employer prevails in defending against an employee claim brought under FEHA, the employer still will not be able to recover attorneys’ fees or costs unless the court finds the plaintiff’s action was frivolous, unreasonable or groundless when brought or that plaintiff continued to litigate after it clearly became so.

What is SB 1343?

SB 1343 requires an employer with five (5) or more employees, including seasonal and temporary employees, provide two (2) hours of sexual harassment training to all supervisory employees and one (1) hour of sexual harassment training to nonsupervisory employees by January 1, 2020. Afterwards, the employer must provide the training once every two (2) years. It also requires an employer provide initial training within six (6) months of an employees’ assumption of a position.

Training can be provided individually to employees or as part of a group in a classroom or an environment that provides for effective and interactive training. The employer is allowed to provide this training in conjunction with other trainings. The training should include information about the federal and state law governing the prohibition, prevention and correction of sexual harassment; the remedies available to victims; and also a practical guide to demonstrate how supervisors can prevent harassment, discrimination and retaliation.

How does SB 1343 affect me?

Previously, only employers with 50 or more employees were required by law to provide sexual harassment training, and only to supervisory employees. So SB 1343 drastically expands not only the extent of employers subject to training requirements to include all employers with five or more employees, but it also expands the types of employees who must receive training to include all non-supervisory employees.

Training methods, content and requirements applicable to who may train are promulgated by the California Department of Fair Employment and Housing (“DFEH”). SB 1343 requires the DFEH create online training courses for both supervisory and nonsupervisory employees, to be made available on its website. However, DFEH does not expect to have its trainings complete until the end of this year. Live trainings are also available from many sources. Notably, to be qualified a live trainer must be either an attorney who practices employment law and has been admitted to the bar for at least two years or a human resources professional with at least two years’ experience in designing trainings or responding to, investigating or advising employers regarding sexual harassment issues.

DFEH recently announced that under its interpretation of SB 1343, employers will have to retrain employees who were already trained in the previous year before January 1, 2020. Or in other words, even if an employee received training in 2018 and otherwise would not need to be receive training from the employer again until two years later, in 2020, SB 1343 will require that employee to receive training again in 2019, before the January 1, 2020 deadline.

What does this mean?

The changes made by SB 1300 enhance an employee’s ability to bring and succeed on harassment claims against their employer, either expanding the liability of employers or lowering the standard employees must meet to succeed on such claims. Additionally, new limitations on an employer’s ability to recover attorney fees, even when they successfully defend against claims, will increase the costs of litigation for employers and possibly incentivize employees to bring claims they would not otherwise pursue.

The sexual harassment training required by SB 1343, in addition to being mandatory for many employers, is also an effective way to protect against the occurrence of prohibited harassment in your workplace. Any measures taken by an employer to prevent harassment will aid the employer in defending against harassment claims. While online trainings may be simple and cost effective, a live training will allow employees to ask questions of a skilled instructor and also may demonstrate the employer is sincerely concerned with preventing harassment to the greatest degree possible.

Now that the changes made by SB 1300 and SB 1343 have taken effect, employers must be aware of the new liabilities they face and legal obligations imposed. Sexual harassment training is a central part of our practice at Palmer Kazanjian Wohl Hodson LLP. Please contact us if you require legal assistance to remain in compliance with new standards or if you have any questions regarding new sexual harassment laws taking effect this year.