(1)Existing law prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking and who takes time off from work to obtain, or attempt to obtain, any relief to help ensure the health, safety, or welfare of the victim or his or her child. Existing law also prohibits an employer from discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking because of the employees status as a victim, if the employer has notice or knowledge of that status. Existing law additionally prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against an employee who is a victim, in this regard, who takes time off to obtain specified services or counseling. Existing law makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.

This bill would extend these employment protections to victims of sexual harassment, as defined. The bill would also extend these employment protections to immediate family members, as defined, of the victims for taking time off from work to provide assistance to the victims when seeking relief or obtaining those services and counseling, as described above. above. The bill would apply these protections to state and local public employers and to the Legislature. By expanding the definition of a crime, this bill would impose a state-mandated local program. The bill would extend confidentiality protections provided to victims in this context, which existing law applies only to people employed by employers with 25 or more employees, to employers generally. The bill would make conforming changes.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking and who takes time off from work to obtain, or attempt to obtain, any relief to help ensure the health, safety, or welfare of the victim or his or her child. Existing law additionally prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against an employee who is a victim, in this regard, who takes time off to obtain specified services or counseling. Existing law makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.

This bill would extend these employment protections to victims of sexual harassment, as defined. The bill would also extend these employment protections to immediate family members, as defined, of the victims for taking time off from work to provide assistance to the victims when seeking relief or obtaining those services and counseling, as described above. By expanding the definition of a crime, this bill would impose a state-mandated local program. The bill would extend confidentiality protections provided to victims in this context, which existing law applies only to people employed by employers with 25 or more employees, to employers generally.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking and who takes time off from work to obtain, or attempt to obtain, any relief to help ensure the health, safety, or welfare of the victim or his or her child. Existing law additionally prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against an employee who is a victim, in this regard, who takes time off to obtain specified services or counseling. Existing law makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.

This bill would extend these employment protections to victims of sexual harassment, as defined. The bill would also extend these employment protections to immediate family members, as defined, of the victims for taking time off from work to provide assistance to the victims when seeking relief or obtaining those services and counseling, as described above. By expanding the definition of a crime, this bill would impose a state-mandated local program. The bill would extend confidentiality protections provided to victims in this context, which existing law applies only to people employed by employers with 25 or more employees, to employers generally.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Date of Hearing: May 16, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2366

Author:(Bonta) – As Amended Ver:April 25, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill allows victims of sexual harassment to take time off from work to obtain legal relief and other services in the same manner that existing law allows victims of domestic violence, sexual assault, and stalking to take time off from work, and extends the rights of job-protected leave to family members, as defined, of victims.

FISCAL EFFECT:

One-time special fund costs of $220,000 and ongoing special fund costs of $200,000 to the Division of Labor Enforcement (DLSE) as a result of an anticipated increase in retaliation claims.

COMMENTS:

1. Background and purpose. Existing law prohibits an employer from discharging, retaliating against, or otherwise taking any adverse action against a victim of domestic violence, sexual assault, or stalking, who must take time off work in order to obtain legal relief or to take other measures necessary to protect the health and welfare of the victim and the victim’s child. Moreover, employers with at least 25 employees must also allow a victim to obtain other kinds of services such as counseling or the services of a rape crisis center.

According to supporters, AB 2366 will promote economic stability for survivors and their families. Supporters point out that family members often take time off to care for loved ones who experience abuse in the workplace but they are not provided employment protections for this activity.

1. Recent legislation. SB 400 (Jackson), Chapter 759, Statutes of 2014, expanded the protections given to victims of domestic violence and sexual assault who take time off to obtain relief (such as a temporary restraining order) to victims of stalking.
2. Related legislation. AB 3081 (Gonzalez Fletcher), of the 2017-18 Legislative Session, includes a provision that prohibits an employer from discriminating or retaliating against an employee that is a victim of sexual harassment if the victim provides notice to the employer of the status. AB 3081 is also being heard today in this committee.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended

SUBJECT:

KEY ISSUES:

1. should employees who are victims of sexual harassment be allowed to take time off from work to access critical services, in the same manner that existing law permits victims of domestic violence, sexual assault, and stalking to take time off?
2. Should immediate family members of victims of sexual harassment, domestic violence, sexual assault, and STALKING be allowed to take time off from work to assist victims?

SYNOPSIS

This bill, like many others introduced this session, responds to recent revelations of sexual harassment in business, sports, entertainment, national politics and, closer to home, the California Assembly and Senate. Existing law prohibits an employer from discharging or taking any adverse action against victims of domestic violence, sexual assault, or stalking who take time off from work to obtain the necessary legal relief or other services to protect and care for themselves. Employers with 25 or more employees must also allow employees to take time off for additional services, including counseling, shelter, and training services. This bill would extend these employee protections in two ways. First, it extends job-protected leave to victims of workplace sexual harassment. Second, it extends job-protected leave to the immediate family members of victims so that they may assist the victim in obtaining legal remedies or other necessary services. While this bill seeks important protections for victims of sexual harassment, the analysis also notes that the nature and consequences of sexual harassment may not always lend themselves to the protections, remedies, and documentation requirements relevant to victims of domestic violence, sexual assault, and stalking. (For example, unlike a victim of domestic violence or rape, a victim of sexual harassment will rarely obtain a court order or police report to certify his or her status as a victim.) However, many of the principles supporting job-protected leave for victims of domestic violence, sexual assault, or stalking also support job-protected leave for severe and pervasive incidents of sexual harassment. Toward that end this bill makes an important start. AB 2366 is supported by a broad coalition of legal aid, women's, labor, and civil rights groups who see the bill as an important protection for workers victimized by sexual harassment. It is opposed by an equally broad coalition of business and employer groups, led by the California Chamber of Commerce, who see the bill as unduly burdensome and unworkable. The author will take amendments in this Committee. Those amendments are reflected in the bill summary and analysis. The amendments are unlikely to remove any opposition.

SUMMARY: Allows victims of sexual harassment to take time off from work to obtain legal relief and other services in the same manner that existing law allows victims of domestic violence, sexual assault, and stalking to take time off from work, and extends the right to job-protected leave to family members, as defined, of victims. Specifically, this bill:

1. Prohibits an employer from discharging, discriminating against, or otherwise retaliating against an employee who is a victim of sexual harassment and takes time off from work to obtain any relief, including injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
2. As a condition of taking time off under 1) above, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless advance notice is not feasible. When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable period of time after the absence, provides certification to the employer. Sufficient certification includes any of the following:
   1. A police report indicating that the employee was a victim of sexual harassment.
   2. A court order protecting or separating the employee from the perpetrator of an act of sexual harassment.
   3. Documentation from a licensed medical professional, counselor, or health care provider showing that the employee was undergoing treatment for physical or mental injuries resulting from sexual harassment.
3. Prohibits an employer from discharging, or discriminating or retaliating against, a family member of the victim who takes time off from work to assist the victim in obtaining the relief described in 1) above. Defines "family member" to mean spouses, domestic partners, grandparents, grandchildren, siblings, and biological, adoptive, or foster children and parents.
4. Prohibits an employer from discharging, or discriminating or retaliating against, an employee because of the employee's status as a victim of sexual harassment.
5. In addition to the requirements and prohibitions imposed in the provisions above, an employer with 25 or more employees shall not discharge, discriminate, or retaliate against an employee who is a victim of sexual harassment (or the victim's family member) for taking time off from work for any of the following purposes:
   1. To seek medical attention for injuries cause by domestic violence, sexual assault, or stalking.
   2. To obtain services from a domestic violence shelter, program, or rape crisis center.
   3. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
   4. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.
6. “Sexual harassment” is defined to mean unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser. “Sexual harassment” need not occur in the workplace “Sexual harassment” includes, but is not limited to, the following:
   1. Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons, or posters.
   2. Derogatory comments, epithets, slurs, or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual.
   3. Touching, assault, impeding, or blocking movements.
   4. Offering employment benefits in exchange for sexual favors.
7. Defines "employer" to mean any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, and the Legislature.

EXISTING LAW:

1. Prohibits an employer from discharging, or discriminating or retaliating against, an employee for taking time off, as specified, to make court appearances, including serving on jury or appearing in court to comply with a subpoena or other court order as a witness in a judicial proceeding. (Labor Code Section 230 (a)-(b).)
2. Prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, assault, or stalking and takes time off from work to obtain any relief, including injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child. (Labor Code Section 230 (c).)
3. As a condition of taking time off under 2) above, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible. When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable period of time after the absence, provides a certification to the employer. Sufficient certification includes any of the following:
   1. A police report indicating that the employee was a victim of domestic violence, sexual assault, or stalking.
   2. A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault, or stalking, or other evidence from the court, as specified.
   3. Documentation from a licensed medical professional, counselor, or health care provider that the employee was undergoing treatment for physical or mental injuries resulting from the domestic violence, sexual assault, or stalking. (Labor Code Section 230 (d).)
4. Prohibits an employer from discharging, or discriminating or retaliating against, an employee because of the employee's status as a victim of domestic violence, sexual assault, or stalking, as specified, and requires an employer to make reasonable workplace accommodations for an employee who is a victim of domestic violence, sexual assault, or stalking. (Labor Code Section 230 (e)-(f).)
5. Provides that an employee who is refused time off or suffers an adverse action in violation of any of the above provisions is entitled to various remedies, including reinstatement or reimbursement, as appropriate. Provides that an employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who is otherwise eligible for rehire, promotion, or restoration is guilty of a misdemeanor. Specifies that an employee who suffers an adverse action because the employee has exercised rights set forth above may file a complaint with the appropriate state agency. (Labor Code Section 230 (g)-(h).)
6. In addition to the requirements and prohibitions imposed in the provisions above, and subject to similar certification requirements and remedies of those provisions, an employer with 25 or more employees shall not discharge, or discriminate or retaliate against, an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for any of the following purposes:
   1. To seek medical attention for injuries cause by domestic violence, sexual assault, or stalking.
   2. To obtain services from a domestic violence shelter, program, or rape crisis center.
   3. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
   4. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation. (Labor Code Section 230.1.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Existing law prohibits an employer from discharging, retaliating against, or otherwise taking any adverse action against a victim of domestic violence, sexual assault, or stalking who must take time off from work in order to obtain legal relief, such as to file for a restraining order, or to take other measures necessary to protect the health, safety, or welfare of the victim or the victim's child. While all employers must permit time off for these reasons, an employer with twenty-five or more employees must also allow a victim to take time off to obtain other kinds of services, such as counseling, training, or the services of a women's shelter or rape crisis center. Ideally, an employee can arrange with the employer in advance to schedule the necessary time off. The employer must reasonably grant that time off and not retaliate in any manner against an employee who requests it. Existing law recognizes that sometimes it may not be feasible for the employee to schedule time off in advance. In these situations, an employer cannot take any adverse action for unscheduled leave so long as the employee provides, within a reasonable time, a police report, court report, or documentation by a health care provider or counselor who treated the employee for physical or mental injuries. Existing law also provides penalties for employers who fail to reasonably allow time off or make reasonable workplace accommodations requested by a victim. Employers with 25 or more employees, in addition to meeting the above requirements, must also allow employees to take time off for additional services, including obtaining counseling, shelter, and training services. To the extent allowed by law, an employer must also maintain the confidentiality of any documentation provided by an employee for the purposes of taking time off or requesting accommodations.

This bill would extend these employee protections in two significant ways. First, the bill extends job-protected leave currently afforded to victims of domestic violence, sexual assault, and stalking to victims of sexual harassment. The bill does not, however, extend the requirement that employers make reasonable workplace accommodations for victims of sexual harassment, even though existing law does require reasonable accommodations when requested by a victim of domestic violence, sexual assault, or stalking. Second, this bill would extend job-protected leave to the "family members" of victims so that they may assist the victim in obtaining legal remedies or other relief or services. A "family member" is defined to include spouses, domestic partners, grandparents, grandchildren, siblings, and biological, adoptive, or foster children and parents.

In support of this measure, the author cites, among other things, a 2016 Equal Employment Opportunity Commission report indicating that the majority of women report having experienced sexual harassment at work, and a great majority of these women leave their jobs within two years of the harassment. The author believes that these victims and survivors of sexual harassment, no less than victims and survivors of domestic violence, sexual assault, and stalking, should be able to obtain necessary medical, legal, and community services without fear of losing their jobs.

Application to Public Employers, Including the Legislature: California courts have held that “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.” (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal. App. 4^th 729; followed in California Correctional Peace Officers Assn. (2010) 188 Cal. App. 4^th 646; Morales v. 22^nd Water Dist. Agricultural Assn. (2016) 1 Cal. App. 5^th 504.) Some sections of the Labor Code include a definition of "employer" that expressly includes public employers. (See e.g. Section 233 on family medical leave.) However, Labor Code Section 230, which this bill amends, does not expressly apply to a public employer. Because the author wants the bill to apply to public employers, including the Legislature, this bill, as proposed to be amended, will define employer to mean "any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, the Legislature and municipalities."

Sexual Harassment versus Domestic Violence, Sexual Assault, and Stalking: One of the arguments made by opponents of this measure is that sexual harassment is quite different than domestic violence, sexual assault, and stalking, and therefore presents different concerns and might not justify the same degree of protection. For example, the first part of the bill's definition of "sexual harassment" defines "unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser." However, in providing examples of this conduct, the bill's definition includes such things as "leering" and exposure to "cartoons." To this extent, the opponents are correct that not all forms of sexual harassment, especially those that might not be severe and pervasive enough to be actionable, are comparable to domestic violence and rape in terms of severity and need for legal action or professional physical or psychological treatment. The opposition fears that such a broad definition of "sexual harassment" would allow an employee to seek time off for what is merely offensive, rather than conduct that is severe or pervasive enough to actionable or unlawful. However, this concern may be misplaced. The likelihood that victims will take time off for light or frivolous reasons is mitigated by the fact that an employee must provide certification by means of a police report, court order, or documentation for medical or psychological treatment for an injury caused by sexual harassment. It seems unlikely that slight or trifling incidents will produce that kind of documentation.

Opponents are surely correct that sexual harassment is different from domestic violence and sexual assault, but contrary to the claims of the opposition, these differences are just as likely to lead to underutilization as opposed to overutilization of protected leave. For example, under Labor Code Section 230 (e) (2), two of the three forms of certification are a police report or a court order. It seems highly unlikely that a victim of sexual harassment – unless the harassment was truly extreme – would ever obtain a court order or police report. If anything, if the bill moves forward, the author may wish to consider allowing the use of other forms of certification that are more appropriate to sexual harassment. To be sure, the bill would allow documentation of medical or psychological treatment, but this too would seem appropriate to only the most extreme forms of harassment that rise to or near the level of sexual assault.

"Reasonable Accommodations" Not Required Under Bill: In addition to guaranteeing job-protected leave for victims of domestic violence, sexual assault, and stalking, existing law also requires employers to, upon request of an employee, make "reasonable accommodations" for these victims. The bill under consideration, however, does not require an employer to make reasonable accommodations for victims of sexual harassment, though arguably employers may already be required to make such accommodations as part of its existing duty, under both state and federal law, to take remedial and corrective measures. (See e.g. Sarro v. City of Sacramento (1999) 78 F.2d 1057.)

Extension to Family Members: Opponents contend that extending protection to family members (which the bill defines to include only immediate family members) is unnecessary and unduly burdensome. Even the existing law protecting victims of domestic violence, sexual assault, and stalking does not extend to immediate family members (although under this bill family leave would be protected for any victim status.) Extending leave protection to family members makes most sense where the victim needs assistance seeking legal remedies or taking other steps to ensure the immediate safety of the victim or the victim's child. This seems more likely to occur in the case of domestic violence, sexual assault, and stalking than in the case of sexual harassment. If the bill moves forward, the author may wish to consider the extent to which a victim of sexual harassment will require the same degree of family assistance, especially given that existing law does not currently provide protected leave to the family member of a victim of domestic violence, sexual assault, or stalking.

ARGUMENTS IN SUPPORT: According to the author, "AB 2366 would give survivors of sexual harassment the ability to access job protected leave currently made available for survivors of domestic violence, sexual assault, or stalking." The author maintains that this measure will also "allow family members to access the same protections if a loved one has experienced sexual assault, sexual harassment, stalking and/or domestic violence, so that they can help their family member to access critical services." The author believes that this is particularly important for survivors who are minors and may not have access to transportation or who need support going to a court hearing. While the author maintains that extending protections to victims of sexual harassment "is the natural, much-needed next step to ensuring a safe environment for all," he also stresses that the bill includes "employer safeguards and verifications . . . in which a survivor and their immediate family member must provide proof for their absence."

Legal Aid at Work, the sponsor of this bill, argues that employees who experience sexual harassment need the protections afforded by this bill just as badly as victims of domestic violence, sexual assault, and stalking need them. In addition to providing needed leave to sexual harassment victims and allowing family members to support their loved ones, Legal Aid at Work argues that AB 2366 will "promote economic stability for survivors and their families." Finally, Legal Aid at Work argues that AB 2366 will "promote gender equity in the workplace because women disproportionally experience sexual harassment . . . The sex-based nature of harassment reinforces and perpetuates gender inequities that are especially harmful in the workplace."

Public Counsel, a pro bono law firm, argues that AB 2366 is needed because the "effects of sexual harassment have been tied to severe psychological effects and physical harm, including negative mood, self-blame, emotional exhaustion, fear, and lowered satisfaction with life in general . . . When sexual harassment survivors are not allowed to take time off work to seek services and care, it can impact their well-being at work and home." Several other organizations listed below support this bill for the substantially the same reasons as those articulated above.

ARGUMENTS IN OPPOSITION: The California Chamber of Commerce, writing on behalf of itself and a large coalition of business and employer associations, strongly opposes this bill. Opponents make a number of arguments against the bill. First, opponents argue that "sexual harassment is much different from sexual assault, stalking, and domestic violence because the harassment occurs in the workplace, the employer is liable, and the police and courts are not normally involved to verify the act. Opponents also argue that the definition of "sexual harassment" in the bill is very broadly defined and includes no requirement that the harassment be "pervasive and severe," the usual test for finding sexual harassment to be actionable. Moreover, opponents argue, this bill fails to distinguish between what is actionable, as determined by a FEHA investigation or a court, versus what is merely "inappropriate behavior." Thus without any finding that sexual harassment was pervasive and severe, an employee would be entitled to take protected leave by merely making an allegation.

Opponents also point out that AB 2366 requires the employer to maintain the confidentiality of an employee requesting leave. "However," opponents argue, "sexual harassment complaints are much different from domestic violence, sexual assault or stalking because they usually occur in the workplace. When an accusation of sexual harassment is made, employers have a duty to conduct an investigation. Investigations must follow certain parameters to be considered legally adequate and the DFEH has implemented these requirements through regulations . . . Per these regulations, once a complaint of harassment is made, employers must provide a timely response and conduct an impartial investigation by qualified personnel. This means interviewing the victim, the alleged harasser, and any potential witnesses. Therefore, an employer cannot ensure confidentiality if they need to interview and notify their own employees about what is going on." If the employer cannot conduct a full investigation because of this, opponents claim, they may find themselves in violation of FEHA.

Finally, opponents argue that "extending the leave to family members is unduly burdensome on employers," especially in light of other statutes that provide for paid sick leave, paid family leave, new parent leave, pregnancy disability leave, and the California Family Rights Act. Extending leave to immediately family members, opponents contend, is not only burdensome but unnecessary because "family members can take time off by utilizing other types of leave."

REGISTERED SUPPORT / OPPOSITION:

Support

Legal Aid at Work (sponsor)

American Association of University Women of California

Breastfeed LA

California Asset Building Coalition

California Child Care

California Domestic Workers Coalition

California Employment Lawyers Association (CELA)

California Latinas for Reproductive Justice

California Partnership to End Domestic Violence

California Professional Firefighters

California School Employees Association, AFL-CIO

California Women’s Law Center

California Work & Family Coalition

Career Ladders Project

Center for Popular Democracy

Child Care Law Center

Coalition of Labor Union Women, CA Capital Chapter

Consumer Attorneys of California

Coalition of Labor Union Women, CA Capital Chapter

End Hunger!

Equal Rights Advocates

Mi Familia Vota

Mujeres Unidas Y Activas (MUA)

National Association of Social Workers, California

National Council of Jewish Women, California

Opportunity Institute

Parent Voices

Public Counsel

Raising California Together

Stronger California Advocates Network

Tradeswomen, Inc.

United Food & Commercial Workers

Voices for Progress

Western Center on Law & Poverty

Women’s Foundation of California

Women Lawyers of Sacramento

Opposition

African American Farmers of California

California Agricultural Aircraft Association

California Ambulance Association

California Apartment Association

California Association for Health Services at Home

California Association of Nurseries and Garden Centers

California Bankers Association

California Beer and Beverage Distributors

California Chamber of Commerce

California Cotton Ginners and Growers Association, Inc.

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

California State Association of Counties

California Tomato Growers Association

California Trucking Association

Camarillo Chamber of Commerce

Civil Justice Association of California

Construction Employers’ Association

Far West Equipment Dealers Association

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Nisei Farmers League

North Orange County Chamber

Oceanside Chamber of Commerce

Official Police Garages of Los Angeles

Oxnard Chamber of Commerce

Rancho Cordova Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Southwest California Legislative Council

Victor Valley Chamber of Commerce

Western Agricultural Processors Association

Wine Institute

Analysis Prepared by:

Date of Hearing:

ASSEMBLY COMMITTEE ON

, Chair

ABPCA Bill Id:

Author:() – As Ver:

As Proposed to be Amended

SUBJECT:

KEY ISSUES:

1. should employees who are victims of sexual harassment be allowed to take time off from work to access critical services, in the same manner that existing law permits victims of domestic violence, sexual assault, and stalking to take time off?
2. Should immediate family members of victims of sexual harassment, domestic violence, sexual assault, and STALKING be allowed to take time off from work to assist victims?

SYNOPSIS

This bill, like many others introduced this session, responds to recent revelations of sexual harassment in business, sports, entertainment, national politics and, closer to home, the California Assembly and Senate. Existing law prohibits an employer from discharging or taking any adverse action against victims of domestic violence, sexual assault, or stalking who take time off from work to obtain the necessary legal relief or other services to protect and care for themselves. Employers with 25 or more employees must also allow employees to take time off for additional services, including counseling, shelter, and training services. This bill would extend these employee protections in two ways. First, it extends job-protected leave to victims of workplace sexual harassment. Second, it extends job-protected leave to the immediate family members of victims so that they may assist the victim in obtaining legal remedies or other necessary services. While this bill seeks important protections for victims of sexual harassment, the analysis also notes that the nature and consequences of sexual harassment may not always lend themselves to the protections, remedies, and documentation requirements relevant to victims of domestic violence, sexual assault, and stalking. (For example, unlike a victim of domestic violence or rape, a victim of sexual harassment will rarely obtain a court order or police report to certify his or her status as a victim.) However, many of the principles supporting job-protected leave for victims of domestic violence, sexual assault, or stalking also support job-protected leave for severe and pervasive incidents of sexual harassment. Toward that end this bill makes an important start. AB 2366 is supported by a broad coalition of legal aid, women's, labor, and civil rights groups who see the bill as an important protection for workers victimized by sexual harassment. It is opposed by an equally broad coalition of business and employer groups, led by the California Chamber of Commerce, who see the bill as unduly burdensome and unworkable. The author will take amendments in this Committee. Those amendments are reflected in the bill summary and analysis and listed at the end of the analysis. The amendments are unlikely to address the concerns of the opposition.

SUMMARY: Allows victims of sexual harassment to take time off from work to obtain legal relief and other services in the same manner that existing law allows victims of domestic violence, sexual assault, and stalking to take time off from work, and extends the right to job-protected leave to immediate family members of victims. Specifically, this bill:

1. Prohibits an employer from discharging, discriminating against, or otherwise retaliating against an employee who is a victim of sexual harassment and takes time off from work to obtain any relief, including injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child.
2. As a condition of taking time off under 1) above, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless advance notice is not feasible. When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable period of time after the absence, provides certification to the employer. Sufficient certification includes any of the following:
   1. A police report indicating that the employee was a victim of sexual harassment.
   2. A court order protecting or separating the employee from the perpetrator of an act of sexual harassment.
   3. Documentation from a licensed medical professional, counselor, or health care provider showing that the employee was undergoing treatment for physical or mental injuries resulting from sexual harassment.
3. Prohibits an employer from discharging, or discriminating or retaliating against, an immediate family member of the victim who takes time off from work to assist the victim in obtaining the relief described in 1) above. Defines "immediate family member" to mean spouses, domestic partners, grandparents, grandchildren, siblings, and biological, adoptive, or foster children and parents.
4. Prohibits an employer from discharging, or discriminating or retaliating against, an employee because of the employee's status as a victim of sexual harassment.
5. In addition to the requirements and prohibitions imposed in the provisions above, an employer with 25 or more employees shall not discharge, discriminate, or retaliate against an employee who is a victim of sexual harassment for taking time off from work for any of the following purposes:
   1. To seek medical attention for injuries cause by domestic violence, sexual assault, or stalking.
   2. To obtain services from a domestic violence shelter, program, or rape crisis center.
   3. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
   4. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.
6. Defines "Sexual harassment” to mean unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work setting. Sexual harassment may be either of the following:
   1. Quid pro quo sexual harassment characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee's submission to sexual advances or other sexual conduct.
   2. Hostile work environment sexual harassment characterized by unwelcome comments or sexual conduct that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.
7. Defines "employer" to mean any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, the Legislature and municipalities.

EXISTING LAW:

1. Prohibits an employer from discharging, or discriminating or retaliating against, an employee for taking time off, as specified, to make court appearances, including serving on jury or appearing in court to comply with a subpoena or other court order as a witness in a judicial proceeding. (Labor Code Section 230 (a)-(b).)
2. Prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, assault, or stalking and takes time off from work to obtain any relief, including injunctive relief, to help ensure the health, safety, or welfare of the victim or his or her child. (Labor Code Section 230 (c).)
3. As a condition of taking time off under 2) above, the employee shall give the employer reasonable advance notice of the employee's intention to take time off, unless the advance notice is not feasible. When an unscheduled absence occurs, the employer shall not take any action against the employee if the employee, within a reasonable period of time after the absence, provides a certification to the employer. Sufficient certification includes any of the following:
   1. A police report indicating that the employee was a victim of domestic violence, sexual assault, or stalking.
   2. A court order protecting or separating the employee from the perpetrator of an act of domestic violence, sexual assault, or stalking, or other evidence from the court, as specified.
   3. Documentation from a licensed medical professional, counselor, or health care provider that the employee was undergoing treatment for physical or mental injuries resulting from the domestic violence, sexual assault, or stalking. (Labor Code Section 230 (d).)
4. Prohibits an employer from discharging, or discriminating or retaliating against, an employee because of the employee's status as a victim of domestic violence, sexual assault, or stalking, as specified, and requires an employer to make reasonable workplace accommodations for an employee who is a victim of domestic violence, sexual assault, or stalking. (Labor Code Section 230 (e)-(f).)
5. Provides that an employee who is refused time off or suffers an adverse action in violation of any of the above provisions is entitled to various remedies, including reinstatement or reimbursement, as appropriate. Provides that an employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who is otherwise eligible for rehire, promotion, or restoration is guilty of a misdemeanor. Specifies that an employee who suffers an adverse action because the employee has exercised rights set forth above may file a complaint with the appropriate state agency. (Labor Code Section 230 (g)-(h).)
6. In addition to the requirements and prohibitions imposed in the provisions above, and subject to similar certification requirements and remedies of those provisions, an employer with 25 or more employees shall not discharge, or discriminate or retaliate against, an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for any of the following purposes:
   1. To seek medical attention for injuries cause by domestic violence, sexual assault, or stalking.
   2. To obtain services from a domestic violence shelter, program, or rape crisis center.
   3. To obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking.
   4. To participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation. (Labor Code Section 230.1.)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Existing law prohibits an employer from discharging, retaliating against, or otherwise taking any adverse action against a victim of domestic violence, sexual assault, or stalking who must take time off from work in order to obtain legal relief, such as to file for a restraining order, or to take other measures necessary to protect the health, safety, or welfare of the victim or the victim's child. While all employers must permit time off for these reasons, an employer with twenty-five or more employees must also allow a victim to take time off to obtain other kinds of services, such as counseling, training, or the services of a women's shelter or rape crisis center. Ideally, an employee can arrange with the employer in advance to schedule the necessary time off. The employer must reasonably grant that time off and not retaliate in any manner against an employee who requests it. Existing law recognizes that sometimes it may not be feasible for the employee to schedule time off in advance. In these situations, an employer cannot take any adverse action for unscheduled leave so long as the employee provides, within a reasonable time, a police report, court report, or documentation by a health care provider or counselor who treated the employee for physical or mental injuries. Existing law also provides penalties for employers who fail to reasonably allow time off or make reasonable workplace accommodations requested by a victim. Employers with 25 or more employees, in addition to meeting the above requirements, must also allow employees to take time off for additional services, including to obtain counseling, shelter, and training services. To the extent allowed by law, an employer must also maintain the confidentiality of any documentation provided by an employee for the purposes of taking time off or requesting accommodations.

This bill would extend these employee protections in two significant ways. First, the bill extends job-protected leave currently afforded to victims of domestic violence, sexual assault, and stalking to victims of sexual harassment. The bill does not, however, extend the requirement that employers make reasonable workplace accommodations for victims of sexual harassment, even though existing law does require reasonable accommodations when requested by a victim of domestic violence, sexual assault, or stalking. Second, this bill would extend job-protected leave to the "immediate family members" of victims so that they may assist the victim in obtaining legal remedies or other relief or services. An "immediate family member" is defined to include spouses, domestic partners, grandparents, grandchildren, siblings, and biological, adoptive, or foster children and parents.

In support of this measure, the author cites, among other things, a 2016 Equal Employment Opportunity Commission report indicating that the majority of women report having experienced sexual harassment at work, and a great majority of these women leave their jobs within two years of the harassment. The author believes that these victims and survivors of sexual harassment, no less than victims and survivors of domestic violence, sexual assault, and stalking, should be able to obtain necessary medical, legal, and community services without fear of losing their jobs.

Definition of "Sexual Harassment:" Despite the fact that California law prohibits sexual harassment, there are very few statutory definitions of "sexual harassment" and seemingly no general definitions that apply throughout the codes. The Fair Employment and Housing Act FEHA), for example, which prohibits sexual harassment as a form of gender discrimination, provides no standard definition. The California Code of Regulations (2 CCR Sections 11019 and 11034) come closest to a general definition, which appears to follow the standard case law definition. As proposed to be amended today, this bill define sexual harassment to mean "unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work setting." The definition also specifies that sexual harassment may be either of the following: "Quid pro quo" sexual harassment, which is "characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee's submission to sexual advances or other sexual conduct;" or "hostile work environment" sexual harassment, which is "characterized by unwelcome comments or sexual conduct that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment."

Application to Public Employers, Including the Legislature: California courts have held that “unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector.” (Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal. App. 4^th 729; followed in California Correctional Peace Officers Assn. (2010) 188 Cal. App. 4^th 646; Morales v. 22^nd Water Dist. Agricultural Assn. (2016) 1 Cal. App. 5^th 504.) Some sections of the Labor Code include a definition of "employer" that expressly includes public employers. (See e.g. Section 233 on family medical leave.) However, Labor Code Section 230, which this bill amends, does not expressly apply to a public employer. Because the author wants the bill to apply to public employers, including the Legislature, this bill, as proposed to be amended, will define employer to mean "any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, the Legislature and municipalities."

Sexual Harassment versus Domestic Violence, Sexual Assault, and Stalking: One of the arguments made by opponents of this measure is that sexual harassment is quite different than domestic violence, sexual assault, and stalking, and therefore presents different concerns and might not justify the same degree of protection. Indeed, earlier versions of the bill defined "sexual harassment" to include "leering" and exposure to "cartoons." To this extent, the opponents are correct that not all forms of sexual harassment, especially those that might not be severe and pervasive enough to be actionable, are comparable to domestic violence and rape in terms of severity and need for legal action or professional physical or psychological treatment. However, the author will amend the bill is this Committee to provide a definition of sexual harassment that requires one or both of the two types of sexual harassment that give rise to liability: "quid pro quo" sexual harassment and "hostile work environment" sexual harassment. "Quid pro quo" (this for that) defines arguably the basest form of sexual harassment: granting promotions or other job benefits in exchange for sexual favors, or denying promotions or benefits to those who withhold sexual favors. A "hostile work environment" includes forms of sexually inappropriate behavior sufficiently pervasive and severe to interfere with work performance. Thus opposition concerns that an employee might seek time off for what is merely offensive, rather than actionable or unlawful, seems misplaced. In addition, the likelihood that victims will take time off for light or frivolous reasons is mitigated by the fact that an employee must provide certification by means of a police report, court order, or documentation for medical or psychological treatment for an injury caused by sexual harassment.

Opponents are surely correct that sexual harassment is different from domestic violence and sexual assault, but contrary to the claims of the opposition, these differences are just as likely to lead to underutilization as opposed to overutilization of protected leave. For example, under Labor Code Section 230 (e) (2), two of the three forms of certification are a police report or a court order. It seems highly unlikely that a victim of sexual harassment – unless the harassment was truly extreme – would ever obtain a court order or police report. If anything, should the bill move forward, the author may wish to consider allowing the use of other forms of certification that are more appropriate to sexual harassment. To be sure, the bill would allow documentation of medical or psychological treatment, but this too would seem appropriate to only the most extreme forms of harassment. Sexual harassment needs to be sufficiently pervasive and severe to create a hostile work environment; it does not need to be psychologically devastating to be actionable.

"Reasonable Accommodations" Not Required Under Bill: In addition to guaranteeing job-protected leave for victims of domestic violence, sexual assault, and stalking, existing law also requires employers to, upon request of an employee, make "reasonable accommodations" for these victims. The bill under consideration, however, does not require an employer to make reasonable accommodations for victims of sexual harassment, though arguably employers may already be required to make such accommodations as part of its existing duty, under both state and federal law, to take remedial and corrective measures. (See e.g. Sarro v. City of Sacramento (1999) 78 F.2d 1057.)

Extension to Immediate Family Members: Opponents contend that extending protection to immediate family members is unnecessary and unduly burdensome. Even the existing law protecting victims of domestic violence, sexual assault, and stalking does not extend to immediate family members. Extending leave protection to immediate family members makes most sense where the victim needs assistance seeking legal remedies or taking other steps to ensure the immediate safety of the victim or the victim's child. This seems more likely to occur in the case of domestic violence, sexual assault, and stalking than in the case of sexual harassment. It should be noted that the bill currently only permits an immediate family member to take protected leave in Section 230 of Labor Code, which generally requires that the victim needs help seeking legal relief or medical treatment to "ensure the health, safety, or welfare of the victim or the victim's child." The immediate family member is not entitled leave in Section 230.1 of the Labor Code, which requires an employer of twenty-five or more employees to give time off for other counseling or training experiences, which may be beneficial to the victim, but which entails the same urgency as obtaining injunctive relief to protect "health, safety, and welfare." In short, the situation in which the immediate family member may take protected leave is, appropriately, more limited than the situations in which the victim may take protected leave. Nonetheless, if the bill moves forward, the author may wish to consider the extent to which a victim of sexual harassment will require the same degree of family assistance as a victim of domestic violence or rape.

ARGUMENTS IN SUPPORT: According to the author, "AB 2366 would give survivors of sexual harassment the ability to access job protected leave currently made available for survivors of domestic violence, sexual assault, or stalking." The author maintains that this measure will also "allow family members to access the same protections if a loved one has experienced sexual assault, sexual harassment, stalking and/or domestic violence, so that they can help their family member to access critical services." The author believes that this is particularly important for survivors who are minors and may not have access to transportation or who need support going to a court hearing. While the author maintains that extending protections to victims of sexual harassment "is the natural, much-needed next step to ensuring a safe environment for all," he also stresses that the bill includes "employer safeguards and verifications . . . in which a survivor and their immediate family member must provide proof for their absence."

Legal Aid at Work, the sponsor of this bill, argues that employees who experience sexual harassment need the protections afforded by this bill just as badly as victims of domestic violence, sexual assault, and stalking need them. In addition to providing needed leave to sexual harassment victims and allowing family members to support their loved ones, Legal Aid at Work argues that AB 2366 will "promote economic stability for survivors and their families." Finally, Legal Aid at Work argues that AB 2366 will "promote gender equity in the workplace because women disproportionally experience sexual harassment . . . The sex-based nature of harassment reinforces and perpetuates gender inequities that are especially harmful in the workplace."

Public Counsel, a pro bono law firm, argues that AB 2366 is needed because the "effects of sexual harassment have been tied to severe psychological effects and physical harm, including negative mood, self-blame, emotional exhaustion, fear, and lowered satisfaction with life in general . . . When sexual harassment survivors are not allowed to take time off work to seek services and care, it can impact their well-being at work and home." Several other organizations listed below support this bill for the substantially the same reasons as those articulated above.

ARGUMENTS IN OPPOSITION: The California Chamber of Commerce, writing on behalf of itself and a large coalition of business and employer associations, strongly opposes this bill. Opponents make a number of arguments against the bill. First, opponents argue that "sexual harassment is much different from sexual assault, stalking, and domestic violence because the harassment occurs in the workplace, the employer is liable, and the police and courts are not normally involved to verify the act. Opponents also argue that the definition of "sexual harassment" in the bill is very broadly defined and includes no requirement that the harassment be "pervasive and severe," the usual test for finding sexual harassment to be actionable. Moreover, opponents argue, this bill fails to distinguish between what is actionable, as determined by a FEHA investigation or a court, versus what is merely "inappropriate behavior." Thus without any finding that sexual harassment was pervasive and severe, an employee would be entitled to take protected leave by merely making an allegation.

Opponents also point out that AB 2366 requires the employer to maintain the confidentiality of an employee requesting leave. "However," opponents argue, "sexual harassment complaints are much different from domestic violence, sexual assault or stalking because they usually occur in the workplace. When an accusation of sexual harassment is made, employers have a duty to conduct an investigation. Investigations must follow certain parameters to be considered legally adequate and the DFEH has implemented these requirements through regulations . . . Per these regulations, once a complaint of harassment is made, employers must provide a timely response and conduct an impartial investigation by qualified personnel. This means interviewing the victim, the alleged harasser, and any potential witnesses. Therefore, an employer cannot ensure confidentiality if they need to interview and notify their own employees about what is going on." If the employer cannot conduct a full investigation because of this, opponents claim, they may find themselves in violation of FEHA.

Finally, opponents argue that "extending the leave to family members is unduly burdensome on employers," especially in light of other statutes that provide for paid sick leave, paid family leave, new parent leave, pregnancy disability leave, and the California Family Rights Act. Extending leave to immediately family members, opponents contend, is not only burdensome but unnecessary because "family members can take time off by utilizing other types of leave."

Proposed Author Amendments: The author will take the following amendments in this Committee. These amendments add the term "sexual harassment" where it was inadvertently omitted, remove a section relating to confidentiality requirements, and define "sexual harassment" and "employer."

• On page 3, line 26 after "sexual assault," insert: sexual harassment
• On page 3, line 25, after "sexual assault," insert: sexual harassment
• On page 7, delete lines 10 to 23, and insert:

(4) “Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work setting. Sexual harassment may be either:

(a) Quid pro quo sexual harassment characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee's submission to sexual advances or other conduct based on sex.

(b) Hostile work environment sexual harassment characterized by unwelcome comments or conduct based on sex that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.

(5) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, the Legislature and municipalities.”

• On page 7, line 27 delete (1) and starting on line 33 change (A)-(D) to (1)-(4).
• On page 8 delete lines 4 to 9.
• On page 9 delete lines 29 to 40 and on page 10 delete lines 1-2, and insert:

(4) “Sexual harassment” means unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work setting. Sexual harassment may be either:

(a) Quid pro quo sexual harassment characterized by explicit or implicit conditioning of a job or promotion on an applicant or employee's submission to sexual advances or other conduct based on sex.

(b) Hostile work environment sexual harassment characterized by unwelcome comments or conduct based on sex that unreasonably interferes with an employee's work performance or creates an intimidating, hostile, or offensive work environment.

(5) “Employer” means any person employing another under any appointment or contract of hire and includes the state, political subdivisions of the state, the Legislature and municipalities.”

REGISTERED SUPPORT / OPPOSITION:

Support

Legal Aid at Work (sponsor)

American Association of University Women of California

Breastfeed LA

California Asset Building Coalition

California Child Care

California Domestic Workers Coalition

California Employment Lawyers Association (CELA)

California Latinas for Reproductive Justice

California Partnership to End Domestic Violence

California Professional Firefighters

California School Employees Association, AFL-CIO

California Women’s Law Center

California Work & Family Coalition

Career Ladders Project

Center for Popular Democracy

Child Care Law Center

Coalition of Labor Union Women, CA Capital Chapter

Consumer Attorneys of California

Coalition of Labor Union Women, CA Capital Chapter

End Hunger!

Equal Rights Advocates

Mi Familia Vota

Mujeres Unidas Y Activas (MUA)

National Association of Social Workers, California

National Council of Jewish Women, California

Opportunity Institute

Parent Voices

Public Counsel

Raising California Together

Stronger California Advocates Network

Tradeswomen, Inc.

United Food & Commercial Workers

Voices for Progress

Western Center on Law & Poverty

Women’s Foundation of California

Women Lawyers of Sacramento

Opposition

African American Farmers of California

California Agricultural Aircraft Association

California Ambulance Association

California Apartment Association

California Association for Health Services at Home

California Association of Nurseries and Garden Centers

California Bankers Association

California Beer and Beverage Distributors

California Chamber of Commerce

California Cotton Ginners and Growers Association, Inc.

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

California State Association of Counties

California Tomato Growers Association

California Trucking Association

Camarillo Chamber of Commerce

Civil Justice Association of California

Construction Employers’ Association

Far West Equipment Dealers Association

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Nisei Farmers League

North Orange County Chamber

Oceanside Chamber of Commerce

Official Police Garages of Los Angeles

Oxnard Chamber of Commerce

Rancho Cordova Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Southwest California Legislative Council

Victor Valley Chamber of Commerce

Western Agricultural Processors Association

Wine Institute

Analysis Prepared by:

Date of Hearing: April 11, 2018

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Tony Thurmond, Chair

ABPCA Bill Id:AB 2366 (

Author:Bonta) – As Introduced Ver:February 14, 2018

SUBJECT: Employment: victims of sexual harassment: protections

SUMMARY: Extends permitted time off protections for domestic violence, sexual assault and stalking victims to victims of sexual harassment and to the immediate family members providing support to victims of sexual harassment, domestic violence, sexual assault and stalking. Specifically, this bill:

1. Prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of sexual harassment for taking time off from work to obtain or attempt to obtain any relief, including but not limited to, a temporary restraining order, restraining order, or other injunctive relief to help ensure the health, safety or welfare of the victim or his or her child.
2. Extends these employment protections to immediate family members of a victim of domestic violence, sexual assault, sexual harassment, or stalking who takes time off from work to provide assistance and support to the victim seeking this relief.
3. Prohibits an employer of 25 or more employees from discharging or in any manner discriminating or retaliating against an employee who is a victim of sexual harassment who takes time off from work for any of the following purposes:
   1. Seeking medical attention for injuries caused by domestic violence, sexual assault, or stalking.
   2. Obtaining psychological counseling related to an experience of domestic violence, sexual assault or stalking.
   3. Participating in safety planning and taking other actions to increase safety from future domestic violence, sexual assault or stalking, including temporary or permanent relocation
4. Prohibits an employer of 25 or more from discharging or in any manner discriminating or retaliating against an employee who takes time off from work to provide assistance and support to an immediate family member of a victim of domestic violence, sexual assault, sexual harassment or stalking who is receiving specified services and counseling.
5. Defines sexual harassment for purposes of these provisions to mean unwanted sexual advances or visual, verbal or physical conduct of a sexual nature and includes gender-based harassment of a person of the same sex as the harasser and to include, but not be limited to the following:
   1. Leering, making sexual gestures, displaying of sexually suggestive objects, pictures, cartoons or posters
   2. Derogatory comments, epithets, slurs or jokes, verbal abuse of a sexual nature, or graphic verbal commentaries or sexually degrading words used to describe an individual
   3. Touching, assault, impeding, or blocking movements
   4. Offering employment benefits in exchange for sexual favors.
   5. Making or threatening retaliatory action after receiving a negative response to sexual advances.
6. Defines family members for purposes of these provisions to include: spouse, child, stepchild, brother, stepbrother, sister, stepsister, mother, stepmother, father or stepfather.
7. Extends confidentiality protections to an employee who has requested leave for jury duty.

EXISTING LAW:

1. Prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking and who takes time off from work to obtain, or attempt to obtain, any relief to help ensure the health, safety, or welfare of the victim or his or her child.
2. Conditions time off for these purposes on the employee giving the employer reasonable advance notice of the employee’s intention to take time off, unless the advance notice is not feasible.
3. Prohibits an employer from taking any action against an employee, if within a reasonable time after the absence occurs, the employee provides a certification for the absence.
4. Deems certification for the absence sufficient in the form of any of the following:
   1. A police report indicating the employee was a victim of domestic violence, sexual assault, or stalking
   2. A protective order separating the employee from the perpetrator of domestic violence, sexual assault, or stalking, or other evidence from the court or prosecuting attorney that the employee has appeared in court.
   3. Documentation from a medical professional, domestic violence or sexual assault counselor that the employee was undergoing treatment of physical or mental injuries or abuse resulting from victimization from an act of domestic violence, sexual assault or stalking.
5. Requires an employer to provide reasonable accommodation for a victim of domestic violence, sexual assault, or stalking who requests an accommodation for the safety of the victim while at work.
6. Prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking who takes time off to obtain specified services or counseling.
7. Requires an employer with 25 or more employees to maintain the confidentiality of an employee requesting leave for these purposes.
8. Makes it a misdemeanor for an employer to refuse to rehire, promote, or restore an employee who has been determined to be so eligible by a grievance procedure or legal hearing.
9. Prohibits sexual harassment in the workplace under the provisions of the Fair Employment and Housing Act.

FISCAL EFFECT: Unknown

COMMENTS: Note: This bill is double referred to Assembly Judiciary Committee upon passage out of this Committee.

The author argues, “According to the Equal Employment Opportunity Commission’s 2016 Select Taskforce report, between 25% and 85% of women report having experienced sexual harassment at work, and as many as 80% of women leave their job within two years of being harassed. According to the Center for Disease Control and Prevention’s 2010 National Intimate Partner and Sexual Violence Survey, nearly one in four women and one in seven men in the United States have experienced severe physical violence by an intimate partner – among victims of intimate partner violence, more than one in three women experienced multiple forms of rape, stalking, or physical violence. One in six women and one in nineteen men in the U.S. have experienced stalking victimization in which they felt very fearful or believed that they or someone close to them would be harmed or killed.”

Arguments in Support

The measure’s sponsor, Legal Aid at Work, writes, “Many of our clients are survivors, or family members of survivors, of domestic violence, sexual assault, sexual harassment, or stalking. All too often, survivors and their loved ones have to choose between keeping their jobs and being able to support their family or seek services at the time they need it most.” Legal Aid at Work continues, “Current Labor Code sections 230 and 230.1 provide employment protections to survivors of domestic violence, sexual assault, and stalking. These include protection from discrimination based on the employee’s known status as a survivor and protected time off to seek services or go to court. Unfortunately, these employment protections do not extend to the immediate family members of survivors, who often need to take time off to care for loved ones who experience abuse. Further, current law does not extend the right to take job-protected leave to survivors of sexual harassment (as opposed to sexual assault). However, these protections are just as needed for employees who experience sexual harassment or employees whose family member has experienced domestic violence, sexual harassment, sexual assault, or stalking.”

Public Counsel argues in support, “AB 2366 will also enable a survivor’s family member to support their loved one while maintaining economic stability. For men and women, support from their partner and other family members is highly predictive of well-being, in part by strengthening the individual’s ability to cope with stress. For example, one study found that for survivors of domestic violence social support from family members significantly increased mental and physical health by lowering levels of anxiety, depression, and post-traumatic stress disorder. Public Counsel continues, “Support from family members is essential to survivors in their time of need, and job-protected leave for family members would allow them to support their loved ones without jeopardizing their and their family’s economic security.”

Arguments in Opposition

The California Chamber of Commerce and others write in opposition that this bill “would significantly expand leave laws provided to victims of sexual harassment without mandating the same employer safeguards that are required for other similar types of leave.” The Chamber and others argue, “sexual harassment is much different from sexual assault, stalking and domestic violence because the harassment occurs in the workplace, the employer is liable, and the police are not normally involved to verify the unlawful act.” They continue, “While sexual harassment is inappropriate, it is not always unlawful. In order for sexual harassment to be actionable, it must be severe or pervasive enough to alter the conditions of the work environment.”

The opposition argues that this measure does not distinguish between actionable harassment versus inappropriate behavior and continues, “FEHA regulates sexual harassment in the workplace and already provides protections to victims. However, AB 2366 places sexual harassment leave in the Labor Code. This provision is misplaced and leaves the employer trying to decipher two potentially conflicting statues.” The opposition further states the measure, “unnecessarily expands employer liability. FEHA already allows victims who prevail in a sexual harassment suit to obtain compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney’s fees. If sexual harassment protection is added to the Labor Code, employers are not only exposed to FEHA remedies, but also now lawsuits under the Private Attorneys General Act.”

Additional Policy Considerations

As the bill advances there are several drafting concerns that the author may wish to address:

1. Defining Sexual Harassment

Under current law, sexual harassment is a prohibited form of sex discrimination under the provision of the Fair Employment and Housing Act. There are two types of workplace sexual harassment:

1. “Quid pro quo” (Latin for “this for that”) sexual harassment is when a job, promotion, or other work benefit is conditioned on the employee’s submission to sexual advances or other conduct based on sex.
2. “Hostile work environment” sexual harassment is when unwelcome comments or conduct based on sex unreasonably interfere with an employee’s work performance or create an intimidating, hostile or offensive work environment.

To be unlawful, the hostile work environment harassment must be severe or pervasive, which means it alters the conditions of employment and creates an abusive work environment.

This bill creates a new and broader definition of sexual harassment that applies to these leave rights under the Labor Code. As currently drafted this new definition of sexual harassment is not exclusively tied to employment, nor does it require the harassment to be severe or pervasive for the employee to be granted leave. As the chamber argues while sexual harassment is inappropriate, it is not always unlawful. To be actionable under an employment discrimination claim it must be severe and pervasive enough to alter the conditions of the work environment.

As this measure advances the author may wish to carefully consider how to define sexual harassment for purposes of the bill. While FEHA’s definition might be the most appropriate reference for victims seeking time off from work, such a definition would not be as useful, for example, for a parent of a minor child who is seeking time off from work to take the child to a counseling appointment related to harassment the child suffered at school.

1. Clarifying Specified Relief, Medical Attention, Services, Counseling & Certification

As currently drafted the specified relief, medical attention, services and counseling for which a victim of sexual harassment may seek time off is most relevant to victims of domestic violence, sexual assault and stalking than to victims of sexual harassment. Likewise, as currently drafted, the certification process for employers is less applicable for victims of sexual harassment.

As the bill advances the author may wish to update the type of relief, medical attention, services, counseling and certification to reflect the specific needs and circumstances of sexual harassment victims.

1. Extending Confidentiality Protections

As drafted, this bill extends confidentiality protections to an employee who is seeking time off for jury duty. It also extends confidentiality protections to an employee of an employer of 25 or more who is seeking time off to provide assistance and support to an immediate family member who is an employee of an employer of 25 or more and is a victim of domestic violence, sexual assault, sexual harassment or stalking seeking specified medical care, services and counseling related to domestic violence, sexual assault or stalking.

As the bill advances the author may wish to instead extend these confidentiality protections to the immediate family members supporting victims of sexual harassment, domestic violence, sexual assault and stalking, regardless of the size of the victim’s employer.

If the author’s intention is also to extend these confidentiality protections to workplace sexual harassment victims, then the author must consider how an employer will both satisfy confidentiality protections for victims of sexual harassment and the mandate on an employer to investigate allegations of sexual harassment.

1. Application to Other Forms of Harassment

According the federal Equal Employment Opportunity Commission, “Of the total number of charges received in FY2015 that alleged harassment from employees working for private employers or for state and local government employers, approximately:

• 45% alleged harassment on the basis of sex,
• 34% alleged harassment on the basis of race,
• 19% alleged harassment on the basis of disability,
• 15% alleged harassment on the basis of age,
• 13% alleged harassment on the basis of national origin, and
• 5% alleged harassment on the basis of religion.^[11]

As the bill advances the author may wish to consider whether it should be expanded to support victims of other forms of harassment.

Previous Legislation

SB 400 (Jackson), Chapter 759, Statutes of 2014. Expanded the protections given to victims of domestic violence and sexual assault who take time off to obtain relief (such as a temporary restraining order) to victims of stalking. Prohibited an employer from discharging, retaliating or discriminating against an employee because of his/her known status as a victim of domestic violence, sexual assault, or stalking, as specified. Required an employer to provide reasonable accommodation for an employee who is a victim of domestic violence, sexual assault, or stalking, as specified.

AB 2195 (Corbett), Chapter 275, Statutes of 2002. Extended existing protections against adverse employment actions taken against victims of domestic violence who take time off from work, as specified, to victims of sexual assault.

AB 2357 (Honda), Chapter 487, Statutes of 2000. Prohibited employers from discharging or discriminating against any employee who takes time off work to receive specified social services related to domestic violence.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers

California Partnership to End Domestic Violence

California School Employees Association

Child Care Law Center

Consumer Attorneys of California

Equal Rights Advocates

Legal Aid at Work (Sponsor)

National Association of Social Workers, CA Chapter

National Council of Jewish Women, CA

Public Counsel

Stronger California Advocates Network

9 to 5

AAUW of California

ACCE

California Asset Building Coalition

California Child Care Resource & Referral Network

California Domestic Workers Coalition

California Employment Lawyers Association

California Latinas for Reproductive Justice

California Partnership

California Work & Family Coalition

Career Ladders Project

End Hunger

MUA

Opportunity Institute

Parent Voices

Raising California Together

The Center for Popular Democracy

UFCW Western States Council

Voices for Progress

Western Center on Law and Poverty

Tradeswomen Inc.

Women's Foundation of California

Opposition

African American Farmers of California

California Agricultural Aircraft Association

California Ambulance Association

California Apartment Association

California Association for Health Services at Home

California Association of Nurseries and Garden Centers

California Beer and Beverage Distributors

California Chamber of Commerce

California Cotton Ginners and Growers Association, Inc.

California League of Food Producers

California Manufacturers and Technology Association

California Restaurant Association

California Retailers Association

California State Association of Counties

California Tomato Growers Association

California Trucking Association

Camarillo Chamber of Commerce

Civil Justice Association of California

Construction Employers’ Association

Far West Equipment Dealers Association

Greater Coachella Valley Chamber of Commerce

Greater Conejo Valley Chamber of Commerce

Nisei Farmers League

North Orange County Chamber

Oceanside Chamber of Commerce

Official Police Garages of Los Angeles

Oxnard Chamber of Commerce

Rancho Cordova Chamber of Commerce

Santa Maria Valley Chamber of Commerce

Southwest California Legislative Council

Victor Valley Chamber of Commerce

Western Agricultural Processors Association

Analysis Prepared by: Jennifer Richard / L. & E. /