Blog: The California Workplace Advisor

TOP 10 EMPLOYMENT LAW DEVELOPMENTS OF 2018:

No. 6 – #METOO’s DRAMATIC IMPACT ON SEXUAL HARASSMENT LEGISLATION

The #MeToo movement went viral on social media and in the news in October 2017 and triggered the most significant changes in California’s sexual harassment laws to be seen in a long time.

In response to the #MeToo movement, California passed sweeping legislation in 2018 that makes it easier to prove sexual harassment in the workplace, while difficult to settle such claims confidentially, and mandates sexual harassment training for more employers than the law previously required. These laws, which go into effect January 1, 2019, are expected to increase the number of sexual harassment lawsuits in California and make their defense challenging.

Easing the Burden on Employees to Prove Harassment

The Legislature selectively approved and disapproved of previous court opinions, and, in effect, eased the burden on employees to prove harassment. Specifically, the Legislature:

• Cemented a previous court decision that observed hostile working environment cases involve issues “not determinable on paper” and stated harassment cases are “rarely appropriate for disposition on summary judgment.”
• Rejected the “stray remarks doctrine” in harassment cases by stating the existence of a hostile work environment depends upon the totality of the circumstances and finding a discriminatory remark, even if not made directly in the context of an employment decision, and even if uttered by a non-decisionmaker, may be relevant, circumstantial evidence of discrimination.
• Found that a single incident of harassing conduct may be sufficient to create a triable issue regarding the existence of a hostile work environment, if the harassing conduct unreasonably interfered with the employee’s work performance and created an intimidating, hostile, or offensive working environment.
• Adopted Justice Ruth Bader Ginsburg’s concurring opinion in Harris v. Forklift Systems, 510 U.S. 17 (1993) that in a workplace harassment lawsuit, “the plaintiff 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.”
• Clarified that the legal standard for sexual harassment should not vary by the type of workplace.

It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties.

The foregoing changes will make it easier for employees to litigate all types of harassment cases, and more difficult for employers to defend against such claims.

Confidentiality Agreements and Releases

Settlements relating to sexual harassment or discrimination claims typically include non-disclosure language that prohibits the employee from discussing their claims post-resolution. SB 820 – the “Stand Together Against Non-Disclosure” Act – will prohibit settlement agreements from preventing the disclosure of factual information related to allegations of sexual harassment, discrimination, retaliation for reporting sexual harassment or discrimination, or failure to prevent sexual harassment or discrimination.

While imposing this restriction, the Legislature recognized some of the benefits of non-disclosure provisions in sexual harassment settlements. Even if an employee brings a sexual harassment complaint to light, the employee may wish to maintain his or her privacy. Claimants may request a non-disclosure settlement provision to shield their identity and therefore maintain their privacy. The Legislature also recognized that employers may be reluctant to pay to resolve claims relating to sexual misconduct if the settlement amount is public. Therefore, settlement agreements can still preclude the disclosure of the amount paid to settle the types of claims described above.

SB 1300 similarly regulates confidentiality agreements and releases employers enter into with current employees. This law prohibits employers from requiring employees to release claims of discrimination, harassment, or retaliation in exchange for a raise, bonus or as a condition of employment or continued employment. It also prohibits employers from requiring current employees from entering into a non-disparagement agreement that would forbid an employee from disclosing information about such a claim. Notably, these prohibitions do not apply to departing employees who are releasing such claims in exchange for severance pay.

Sexual Harassment and Bystander Intervention Training

California’s Fair Employment Housing Act (“FEHA”) previously required mid-sized and larger employers with at least 50 employees to provide anti-sexual harassment training to their supervisory employees. California expanded this requirement to apply to small employers – those with five or more employees. Employers are also now required to provide anti-sexual harassment training to non-supervisors in addition to supervisors. The new law gives employers until January 1, 2020 to comply.

In addition to these mandatory training requirements, SB 1300 authorizes employers to provide “bystander intervention training” that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors, and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.

Employers who wish to take a proactive stance against harassment may wish to go above and beyond what the law mandates and provide this type of training.

Alison Hamer is an associate in the Santa Monica office of Hirschfeld Kraemer LLP. She can be reached at (310) 255-1813, or ahamer@hkemploymentlaw.com.