#MeToo Movement Ushers in New California Sexual Harassment Laws
November 6, 2018
California Governor Jerry Brown signed numerous employment bills into law this year, many of which are in direct response to the #metoo movement. This article summarizes those new sexual harassment laws. All new laws take effect January 1, 2019 unless noted otherwise.
Expansion of Who Can be Liable for Sexual Harassment (SB 224): This new law is directly in response to sexual harassment claims that have plagued the entertainment industry and Silicon Valley. It expands who can be liable for sexual harassment to include someone who “holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party” such as an investor, elected official, lobbyist, director or producer.
New Sexual Harassment Training Requirements (SB 1343): This bill focuses on prevention of sexual harassment in the workplace, especially among smaller businesses, by requiring employers with 5 or more employees to provide at least two hours of training to supervisory employees and at least one hour of training to non-supervisory employees. Under the new law, employers must provide the training every two years, with the first round being completed by January 1, 2020. The DFEH will be developing and posting online training courses for employers to utilize to satisfy this requirement.
Restriction of Confidentiality Clauses in Sexual Harassment Settlements (SB 820): In an effort to prevent “secret” sexual harassment settlements, this bill prohibits confidentiality clauses in sexual harassment settlement agreements that would prevent disclosure of factual information relating to claims of sexual assault, sexual harassment, sex discrimination, or retaliation for reporting sexual harassment. It also allows the claimant to request that the settlement agreement include a provision that limits the disclosure of the claimant’s identity or of facts that would lead to the discovery of the claimant’s identity. The settlement payment amount can remain confidential.
Amending California's Sexual Harassment Law (SB 1300): This omnibus bill amends sexual harassment law under the Fair Employment and Housing Act (FEHA) in numerous ways:
It lowers the plaintiff’s standard of proof in sexual harassment cases
Plaintiffs no longer need to prove workplace harassment caused a tangible productivity decline, but only that the harassment altered working conditions as to make it more difficult to do the job
A “single incident of harassing conduct” may be sufficient to create a triable issue regarding the existence of a hostile work environment
A “stray remark” made by a non-decision maker or not made directly in the context of an employment decision may be relevant, circumstantial evidence of discrimination
Harassment lawsuits are “rarely appropriate for summary judgment,” which is a pre-trial motion that can dispose of a case prior to trial
It makes it unlawful for employers to require an employee to sign a release of a claim or right under FEHA in exchange for a raise or bonus, or as a condition of employment or continued employment
It bans employers from requiring an employee to sign a non-disparagement agreement or other document (with some exceptions) that denies the employee the right to disclose information about unlawful acts in the workplace
It allows but does not mandate employers to provide employees with “bystander intervention training,” which is information and guidance on how bystanders can recognize potentially problematic behaviors and take action
It prohibits a prevailing defendant from being awarded attorney’s fees and costs in a sexual harassment lawsuit unless the court finds the plaintiff’s lawsuit was frivolous, unreasonable, or groundless
Testifying about Sexual Assault and Harassment (AB 3109): This bill arises from Olympic gymnast McKayla Maroney’s fight to testify at the criminal trial against Dr. Larry Nassar who sexually abused her as well as many other gymnasts. Maroney’s settlement agreement with USA Gymnastics subjected her to a $100,000 fine if she testified against Nassar. This bill makes contract and settlement agreement provisions void and unenforceable if they waive a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.