Seeking to Pave the Way in the #MeToo Era, the California Legislature Veers off Course

By Andrew J. Sommer

shutterstock_me tooThe #MeToo movement, formed in the wake of sexual misconduct allegations against high profile public figures, has dramatically changed the discourse over harassment. Various politicians, celebrities and business leaders have been implicated in varying degrees, from engaging in sexual misconduct to tolerating a workplace with a pervasive culture of harassment and bias.  With this social movement gaining traction, the California legislature has introduced a flurry of bills seeking to change the perceived culture of workplace harassment but also revamp a host of existing general employment laws to add tools to the arsenal for employees and their attorneys.  As an example, the legislature has introduced the following bills since January 2018

SB 820 – Non-Disclosure Clauses in Settlement Agreements

In the #MeToo movement, the use of non-disclosure agreements to keep harassment allegations from coming to light has drawn significant public criticism. The California legislature has recently stepped into the fray, by introducing Senate Bill (SB) 820 to generally ban non-disclosure provisions in settlement agreements resolving claims of sexual assault or harassment, sex discrimination, or harassment and retaliation for reporting such claims. Specifically, the bill prohibits settlement agreements from containing any provision preventing the “disclosure of factual information” related to these types of lawsuits, except where the provision was included at the request of the claimant.

Notably, the bill makes clear that it does not prohibit agreements precluding parties from disclosing the amount of any settlement. The focus is thus on any effort to suppress information concerning incidents of harassment, discrimination or retaliation and not necessarily the settlement terms.

SB 1300 – Non-Disparagement Agreements and Harassment Training

In addition to the non-disclosure requirements of SB 820, the California Senate has introduced SB 1300, which would more broadly prohibit employers from requiring an employee to sign a non-disparagement agreement or other document that seeks to deny the employee the right to disclose information about unlawful acts in the workplace, including but not limited to, sexual harassment. If these bills are passed, California employers will need to restructure employment and settlement agreements to, at a minimum, carve out an exception for non-disparagement language or other clauses preventing employees from disclosing information regarding employment circumstances giving rise to these legal claims.

shutterstock_stop harassment handSB 1300 seeks to comprehensively address sexual harassment in the workplace by additionally augmenting sexual harassment training requirements. Currently, California employers with 50 or more employees must provide supervisory employees with two hours of interactive harassment training every two years, and to all new supervisory employees within six months of their assumption of a supervisory position. This bill proposes reducing the employment threshold for harassment training from employers with 50 or more employees to all employers covered under the California Fair Employment and Housing Act (FEHA) (i.e., employers with five or more employees). The bill would also expand the number of employees who are required to attend harassment training from supervisory employees to all employees.

As an example of the legislature’s efforts to disadvantage employers in defending against employment lawsuits, SB 1300 seeks to reverse California appellate court decisions ruling that for an employer to be liable for a failure to take all reasonable steps to prevent harassment or discrimination from occurring – an independent legal claim under California law – there must be a finding that unlawful harassment or discrimination actually occurred. The bill provides that the plaintiff does not need to prove that he or she endured harassment or discrimination to establish a failure to prevent claim.

Instead, it would suffice for the plaintiff to show that the employer knew that the conduct was unwelcome to the plaintiff, that the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring. The problem with the highlighted text is that it has the potential of creating significant legal exposure for employers that fail to address known incidents of inappropriate workplace behavior, even if that conduct is not to a degree sufficient to constitute unlawful harassment and does not implicate the plaintiff. This bill broadly applies to all circumstances of harassment and discrimination based on sex and any other recognized protected class.

AB 1870 – Extending Statute of Limitations for Bringing FEHA Claims

Under current law, employees have one year from the date upon which the unlawful practice occurred to file an administrative claim for harassment or discrimination with the California Department of Fair Employment and Housing (DFEH). Assembly Bill (AB) 1870 would extend that limitations period to three years and is not limited to sexual harassment, but applies to all forms of employment and housing discrimination under the California Fair Employment and Housing Act (FEHA).

SB 1038 – Personal Liability for Retaliation

SB 1038 would make an employee personally liable for retaliating against a person who has engaged in protected activity under the FEHA. This bill seeks to undermine the California Supreme Court’s ruling a decade ago in Torrey v. Lodge at Torrey Pines Partnership that, while employers are liable for retaliation under the FEHA, non-employer individuals are not personally liable for their role in that retaliation.

AB 3080 – Arbitration of Harassment Claims

California Assemblywoman Lorena Gonzalez Fletcher has introduced AB 3080 as a placeholder to prohibit employers from requiring applicants and employees to sign arbitration agreements. The bill also includes a whistleblower provision providing that employers shall not prohibit employees or independent contractors from publicly disclosing any sexual harassment that they endured or witnessed.

AB 1761 – Protections for Hotel Workers

AB 1761 would require that hotel employers provide employees working alone in a guestroom with a panic button. The employee may use the panic button and cease work if the employee reasonably believes there is an ongoing crime, harassment or other emergency happening in the employee’s presence.

The bill would also require that hotels maintain a list of all guests accused of violent acts or sexual harassment towards an employee, and notify employees of guests on the list before the employee is assigned to work alone in that guest’s room. Employers must decline services to guests on the list based on the accusation made under penalty of perjury or other evidence.

Only Time Will Tell

While these bills will evolve over the 2017-2018 legislative session as they pass through committee and are eventually reconciled with legislation from the other house, we expect legislation concerning sexual harassment will be signed into law in some form. Some of the present legislation, however, goes well beyond the core issues raised in the  #MeToo movement and instead is advancing the agenda of plaintiff’s lawyers to make it even easier to sue employers in the Golden State.


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