SB 1300: Unlawful employment practices: discrimination and harassment.
- Session Year: 2017-2018
- House: Senate
- Latest Version Date: 2018-09-30
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.
Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would specify that an employer may be responsible for the acts of nonemployees with respect to other harassment activity.
The bill, with certain exceptions, would prohibit an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill would also authorize an employer to provide bystander intervention training, as specified, to their employees.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislature about the application of FEHA in regard to harassment.
This bill would incorporate additional changes to Section 12940 of the Government Code proposed by SB 1038 to be operative only if this bill and SB 1038 are enacted and this bill is enacted last.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.
Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would specify that an employer may be responsible for the acts of nonemployees with respect to other harassment activity.
The bill, with certain exceptions, would prohibit an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill would also authorize an employer to provide bystander intervention training, as specified, to their employees.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislature about the application of FEHA in regard to harassment.
This bill would incorporate additional changes to Section 12940 of the Government Code proposed by SB 1038 to be operative only if this bill and SB 1038 are enacted and this bill is enacted last.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Under
Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An entity is required to take all reasonable steps to prevent harassment from occurring. FEHA defines employer as any person regularly employing 5 or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as specified.
This bill would require an employee in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, as described above, to show that the employer knew that the conduct was unwelcome to the employee, 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.This bill would specify that an employer may be responsible for the acts of nonemployees with respect to other harassment activity.
The bill, with certain exceptions, would prohibit an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill, instead, would require an employer, as defined under FEHA, to provide that training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training, as specified, and to provide information to each employee on how to report harassment and how to contact the department to make a complaint. bill would also authorize an employer to provide bystander intervention training, as specified, to their employees.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation groundless when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislation Legislature about the application of FEHA in regard to harassment.
This bill would incorporate additional changes to Section 12940 of the Government Code proposed by SB 1038 to be operative only if this bill and SB 1038 are enacted and this bill is enacted last.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An entity is required to take all reasonable steps to prevent harassment from occurring. FEHA defines employer as any person regularly employing 5 or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as specified.
This bill would require a plaintiff an employee in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, as described above, to show that the employer knew that the conduct was unwelcome to the plaintiff, employee, 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 bill would prohibit an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill, instead, would require an employer, as defined under FEHA, to provide that training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training, as specified, and to provide information to each employee on how to report harassment and how to contact the department to make a complaint.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislation about the application of FEHA in regard to harassment.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An entity is required to take all reasonable steps to prevent harassment from occurring. FEHA defines employer as any person regularly employing five 5 or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as specified.
This bill would provide that require a plaintiff in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, as described above, is not required to prove that the plaintiff endured harassment or discrimination and would provide that it suffices 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 become became pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
The bill would prohibit an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill, instead, would require an employer, as defined under FEHA, to provide that training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training, as specified, and to provide information to each employee on how to report harassment and how to contact the department to make a complaint.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislation about the application of FEHA in regard to harassment.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An entity is required to take all reasonable steps to prevent harassment from occurring. FEHA defines employer as any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as specified.
This bill would provide that a plaintiff in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, as described above, is not required to prove that the plaintiff endured sexual harassment or discrimination. discrimination and would provide that it suffices 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 become pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
The bill would prohibit an employer from requiring employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of 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. The bill would prohibit an employer from requiring or to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA provides that an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
This bill would instead make the above provision apply with respect to any type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill, instead, would require any employer an employer, as defined under FEHA, to provide that training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training, as specified, and to provide information to each employee on how to report harassment and how to contact the department to make a complaint.
FEHA authorizes the court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorneys fees and costs, including expert witness fees.
This bill would provide that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or that the plaintiff continued to litigate after it clearly became so.
This bill would declare the intent of the Legislation about the application of FEHA in regard to harassment.
The California Fair Employment and Housing Act (FEHA) prohibits various actions as unlawful employment practices unless the employer acts based upon a bona fide occupational qualification or applicable security regulations established by the United States or the State of California. In this regard, FEHA makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. Under FEHA, an employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An entity is required to take all reasonable steps to prevent harassment from occurring.
This bill would provide that a plaintiff in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, as described above, is not required to prove that the plaintiff endured sexual harassment or discrimination.
The bill would prohibit an employer from requiring the execution of 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. The bill would prohibit an employer from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.
FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years, as specified.
This bill, instead, would require any employer to provide that training to all employees in California within 6 months of their hire and once every 2 years. The bill also would require an employer to provide bystander intervention training, as specified, and to provide information to each employee on how to report harassment and how to contact the department to make a complaint.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 2.5.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)(A)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(B)An employee of an entity subject to this subdivision who is alleged to have engaged in any harassment prohibited by this section may be held personally liable for any act in violation of subdivision (h).
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely and good faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 3.Section 12950.2 is added to the Government Code, to read:12950.2.An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
(c)(1)This section does not apply to a negotiated settlement agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employers internal complaint process.
(2)As used in this section, negotiated means that the agreement is voluntary, deliberate, and informed, provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
SEC. 6.Section 2.5 of this bill incorporates amendments to Section 12940 of the Government Code proposed by both this bill and Senate Bill 1038. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 12940 of the Government Code, and (3) this bill is enacted after Senate Bill 1038, in which case Section 2 of this bill shall not become operative.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 2.5.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)(A)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(B)An employee of an entity subject to this subdivision who is alleged to have engaged in any harassment prohibited by this section may be held personally liable for any act in violation of subdivision (h).
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely and good faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 3.Section 12950.2 is added to the Government Code, to read:12950.2.An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
(c)(1)This section does not apply to a negotiated settlement agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employers internal complaint process.
(2)As used in this section, negotiated means that the agreement is voluntary, deliberate, and informed, provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
SEC. 6.Section 2.5 of this bill incorporates amendments to Section 12940 of the Government Code proposed by both this bill and Senate Bill 1038. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 12940 of the Government Code, and (3) this bill is enacted after Senate Bill 1038, in which case Section 2 of this bill shall not become operative.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)(1)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(2)In an action under this subdivision, the employee shall show all of the following:(A)That the employer knew that the conduct was unwelcome to the employee.(B)That the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive.(C)That the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 2.5.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)(A)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(B)An employee of an entity subject to this subdivision who is alleged to have engaged in any harassment prohibited by this section may be held personally liable for any act in violation of subdivision (h).
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, timely and good faith, faith interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 3.Section 12950.1 of the Government Code is amended to read:12950.1.(a) An employer shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all employees in California within six months of their hire. An employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing employees in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.(b)An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).(c)An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.(d)An employer shall also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education shall also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.(e)The employer shall provide information to each employee on how and to whom harassment should be reported as well as provide information on how to contact the department to make a complaint regarding a violation of the laws regarding workplace discrimination, harassment, and retaliation.(f)The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new employees pursuant to subdivision (b) of Section 19995.4, using existing resources.(g)Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employers compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.(h)If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.(i)The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.(j)(1)For purposes of this section only, employer also includes any person regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.(2)For purposes of this section, abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employers legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a persons work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.SEC. 3.Section 12950.2 is added to the Government Code, to read:12950.2.An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
(c)(1) This section does not apply to a negotiated settlement agreement to resolve an underlying claim under this part that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employers internal complaint process.
(2)As used in this section, negotiated means that the agreement is voluntary, deliberate, and informed, provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought groundless when brought, or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
SEC. 6.Section 2.5 of this bill incorporates amendments to Section 12940 of the Government Code proposed by both this bill and Senate Bill 1038. That section of this bill shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2019, (2) each bill amends Section 12940 of the Government Code, and (3) this bill is enacted after Senate Bill 1038, in which case Section 2 of this bill shall not become operative.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)(1)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(2)In an action under this subdivision, the plaintiff employee shall show all of the following:
(A)That the employer knew that the conduct was unwelcome to the plaintiff. employee.
(B)That the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive.
(C)That the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 3.Section 12950.1 of the Government Code is amended to read:12950.1.(a) An employer shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all employees in California within six months of their hire. An employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing employees in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b)An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).
(c)An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
(d)An employer shall also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education shall also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
(e)The employer shall provide information to each employee on how and to whom harassment should be reported as well as provide information on how to contact the department to make a complaint regarding a violation of the laws regarding workplace discrimination, harassment, and retaliation.
(f)The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new employees pursuant to subdivision (b) of Section 19995.4, using existing resources.
(g)Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employers compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(h)If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.
(i)The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
(j)(1)For purposes of this section only, employer also includes any person regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(2)For purposes of this section, abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employers legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a persons work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Civil Code, Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)(1)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The plaintiff in an action alleging an unlawful employment practice under this subdivision is not required to prove that the plaintiff endured harassment or discrimination for purposes of showing that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring. It shall suffice for the plaintiff to show that
(2)In an action under this subdivision, the plaintiff shall show all of the following:
(A)That the employer knew that the conduct was unwelcome to the plaintiff, that plaintiff.
(B)That the conduct would meet the legal standard for harassment or discrimination if it increased in severity or become pervasive, and that became pervasive.
(C)That the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 3.Section 12950.1 of the Government Code is amended to read:12950.1.(a) An employer shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all employees in California within six months of their hire. An employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing employees in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b)An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).
(c)An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
(d)An employer shall also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education shall also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
(e)The employer shall provide information to each employee on how and to whom harassment should be reported as well as provide information on how to contact the department to make a complaint regarding a violation of the laws regarding workplace discrimination, harassment, and retaliation.
(f)The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new employees pursuant to subdivision (b) of Section 19995.4, using existing resources.
(g)Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employers compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(h)If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.
(i)The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
(j)(1)For purposes of this section only, employer also includes any person regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(2)For purposes of this section, abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employers legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a persons work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Civil Code, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
The Legislature hereby declares its intent with regard to application of the laws about harassment contained in this part.
(a)The purpose of these laws is to provide all Californians with an equal opportunity to succeed in the workplace and should be applied accordingly by the courts. The Legislature hereby declares that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victims emotional tranquility in the workplace, affect the victims ability to perform the job as usual, or otherwise interfere with and undermine the victims personal sense of well-being. In this regard, the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job. (Id. at 26).
(b)A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiffs work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuits opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.
(c)The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the stray remarks doctrine.
(d)The legal standard for sexual harassment should not vary by type of workplace. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past. In determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties. The Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.
(e)Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues not determinable on paper.
SECTION 1.SEC. 2.Section 12940 of the Government Code is amended to read:12940.It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. A The plaintiff in an action alleging an unlawful employment practice under this subdivision is not required to prove that the plaintiff endured sexual harassment or discrimination for purposes of showing that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring. It shall 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 become pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 2.Section 12941.5 is added to the Labor Code, to read:12941.5.It is the intent of the Legislature to provide guidance to California courts regarding the application of the severe or pervasive standard for sexual harassment claims in the workplace.SEC. 3.Section 12950.1 of the Government Code is amended to read:12950.1.(a) An employer shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all employees in California within six months of their hire. An employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing employees in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b)An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).
(c)An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
(d)An employer shall also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education shall also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
(e)The employer shall provide information to each employee on how and to whom harassment should be reported as well as provide information on how to contact the department to make a complaint regarding a violation under this section. of the laws regarding workplace discrimination, harassment, and retaliation.
(f)The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new employees pursuant to subdivision (b) of Section 19995.4, using existing resources.
(g)Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employers compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(h)If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.
(i)The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
(j)(1)For purposes of this section only, employer also includes any person regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(2)For purposes of this section, abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employers legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a persons work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part in exchange for a raise or bonus, or as a condition of employment or continued employment. part.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
SEC. 5.Section 12965 of the Government Code is amended to read:12965.(a)In the case of failure to eliminate an unlawful practice under this part through conference, conciliation, mediation, or persuasion, or in advance thereof if circumstances warrant, the director in the directors discretion may bring a civil action in the name of the department on behalf of the person claiming to be aggrieved. Prior to filing a civil action, the department shall require all parties to participate in mandatory dispute resolution in the departments internal dispute resolution division free of charge to the parties in an effort to resolve the dispute without litigation. In any civil action, the person claiming to be aggrieved shall be the real party in interest and shall have the right to participate as a party and be represented by that persons own counsel. The civil action shall be brought in any county in which unlawful practices are alleged to have been committed, in the county in which records relevant to the alleged unlawful practices are maintained and administered, or in the county in which the person claiming to be aggrieved would have worked or would have had access to public accommodation, but for the alleged unlawful practices. If the defendant is not found in any of these counties, the action may be brought within the county of the defendants residence or principal office.
For any complaint treated by the director as a group or class complaint for purposes of investigation, conciliation, mediation, or civil action pursuant to Section 12961, a civil action shall be brought, if at all, within two years after the filing of the complaint. For any complaint alleging a violation of Section 51.7 of the Civil Code, a civil action shall be brought, if at all, within two years after the filing of the complaint. For all other complaints, a civil action shall be brought, if at all, within one year after the filing of a complaint. If the director determines, pursuant to Section 12961, that a complaint investigated as a group or class complaint under Section 12961 is to be treated as a group or class complaint for purposes of conciliation, mediation, or civil action as well, that determination shall be made and shall be communicated in writing within one year after the filing of the complaint to each person, employer, labor organization, employment agency, or public entity alleged in the complaint to have committed an unlawful practice.
(b)If a civil action is not brought by the department within 150 days after the filing of a complaint, or if the department earlier determines that no civil action will be brought, the department shall promptly notify, in writing, the person claiming to be aggrieved that the department shall issue, on request, the right-to-sue notice. This notice shall indicate that the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization, or employment agency named in the verified complaint within one year from the date of that notice. If the person claiming to be aggrieved does not request a right-to-sue notice, the department shall issue the notice upon completion of its investigation, and not later than one year after the filing of the complaint. A city, county, or district attorney in a location having an enforcement unit established on or before March 1, 1991, pursuant to a local ordinance enacted for the purpose of prosecuting HIV/AIDS discrimination claims, acting on behalf of any person claiming to be aggrieved due to HIV/AIDS discrimination, may also bring a civil action under this part against the person, employer, labor organization, or employment agency named in the notice. The superior courts of the State of California shall have jurisdiction of those actions, and the aggrieved person may file in these courts. An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendants residence or principal office. A copy of any complaint filed pursuant to this part shall be served on the principal offices of the department. The remedy for failure to send a copy of a complaint is an order to do so. Those actions may not be filed as class actions or may not be maintained as class actions by the person or persons claiming to be aggrieved where those persons have filed a civil class action in the federal courts alleging a comparable claim of employment discrimination against the same defendant or defendants. In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys fees and costs, including expert witness fees. fees, except that, notwithstanding Section 998 of the Civil Code, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
(c)A court may grant as relief in any action filed pursuant to subdivision (a) any relief a court is empowered to grant in a civil action brought pursuant to subdivision (b), in addition to any other relief that, in the judgment of the court, will effectuate the purpose of this part. This relief may include a requirement that the employer conduct training for all employees, supervisors, and management on the requirements of this part, the rights and remedies of those who allege a violation of this part, and the employers internal grievance procedures. In addition, in order to vindicate the purposes and policies of this part, a court may assess against the defendant, if the civil complaint or amended civil complaint so prays, a civil penalty of up to twenty-five thousand dollars ($25,000) to be awarded to a person denied any right provided for by Section 51.7 of the Civil Code, as an unlawful practice prohibited under this part.
(d)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(C)A right-to-sue notice is issued to the person claiming to be aggrieved upon deferral of the charge by the Department of Fair Employment and Housing to the Equal Employment Opportunity Commission.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) expires when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
(3)This subdivision is intended to codify the holding in Downs v. Department of Water and Power of City of Los Angeles (1997) 58 Cal.App.4th 1093.
(e)(1)Notwithstanding subdivision (b), the one-year statute of limitations, commencing from the date of the right-to-sue notice by the Department of Fair Employment and Housing, to the person claiming to be aggrieved, shall be tolled when all of the following requirements have been met:
(A)A charge of discrimination or harassment is timely filed concurrently with the Equal Employment Opportunity Commission and the Department of Fair Employment and Housing.
(B)The investigation of the charge is deferred by the Equal Employment Opportunity Commission to the Department of Fair Employment and Housing.
(C)After investigation and determination by the Department of Fair Employment and Housing, the Equal Employment Opportunity Commission agrees to perform a substantial weight review of the determination of the department or conducts its own investigation of the claim filed by the aggrieved person.
(2)The time for commencing an action for which the statute of limitations is tolled under paragraph (1) shall expire when the federal right-to-sue period to commence a civil action expires, or one year from the date of the right-to-sue notice by the Department of Fair Employment and Housing, whichever is later.
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:
(a)For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
(1)This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(2)This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employees medical condition, is unable to perform the employees essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employees medical condition, is unable to perform the employees essential duties, or cannot perform those duties in a manner that would not endanger the employees health or safety or the health or safety of others even with reasonable accommodations.
(3)Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A)Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with the rules and regulations adopted by the commission.
(B)Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4)Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5)(A)This part does not prohibit an employer from refusing to employ an individual because of the individuals age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B)The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b)For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organizations staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c)For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d)For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e)(1)Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicants request for reasonable accommodation.
(3)Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f)(1)Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2)Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g)For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h)For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i)For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j)(1)For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employers control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2)The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3)An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
(4)(A)For purposes of this subdivision only, employer means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of employer in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B)Notwithstanding subparagraph (A), for purposes of this subdivision, employer does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C)For purposes of this subdivision, harassment because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5)For purposes of this subdivision, a person providing services pursuant to a contract means a person who meets all of the following criteria:
(A)The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B)The person is customarily engaged in an independently established business.
(C)The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employers work.
(k)For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. A plaintiff in an action alleging an unlawful employment practice under this subdivision is not required to prove that the plaintiff endured sexual harassment or discrimination for purposes of showing that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l)(1)For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the persons religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the persons religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person in the workplace or industry.
(2)An accommodation of an individuals religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3)An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m)(1)For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2)For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n)For an employer or other entity covered by this part to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o)For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p)Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veterans preference as permitted by law.
SEC. 2.Section 12941.5 is added to the Labor Code, to read:12941.5.It is the intent of the Legislature to provide guidance to California courts regarding the application of the severe or pervasive standard for sexual harassment claims in the workplace.
SEC. 3.Section 12950.1 of the Government Code is amended to read:12950.1.(a) An employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. hire. An employer covered by this section shall provide sexual harassment training and education to each supervisory employee in California once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors employees in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b)An employer shall also include prevention of abusive conduct as a component of the training and education specified in subdivision (a).
(c)An employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
(d)An employer shall also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education shall also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
(e)The employer shall provide information to each employee on how and to whom harassment should be reported as well as provide information on how to contact the department to make a complaint regarding a violation under this section.
(d)(f)The state shall incorporate the training required by subdivisions (a) to (c), inclusive, into the 80 hours of training provided to all new supervisory employees pursuant to subdivision (b) of Section 19995.4, using existing resources.
(e)(g)Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employers compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(f)(h)If an employer violates this section, the department may seek an order requiring the employer to comply with these requirements.
(g)(i)The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.
(h)(j)(1)For purposes of this section only, employer means also includes any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(2)For purposes of this section, abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employers legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a persons work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
SEC. 4.Section 12964.5 is added to the Government Code, to read:12964.5.(a)It is an unlawful employment practice for an employer to do either of the following:
(1)(A)For an employer to require an employee to sign a release of a claim or right under this part in exchange for a raise or bonus, or as a condition of employment or continued employment.
(B)As used in this section, release of claim or right includes requiring an individual to execute a statement that he or she does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity.
(2)(A)For an employer to require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
(B)For purposes of this paragraph, information about unlawful acts in the workplace includes, but is not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
(b)Any agreement or document in violation of this section is contrary to public policy and shall be unenforceable.
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Date
|
Status
|
|---|---|
| Sep 30, 2018 | Chaptered by Secretary of State. Chapter 955, Statutes of 2018. |
| Sep 30, 2018 | Approved by the Governor. |
| Sep 12, 2018 | Enrolled and presented to the Governor at 5 p.m. |
| Aug 31, 2018 | Assembly amendments concurred in. (Ayes 25. Noes 10.) Ordered to engrossing and enrolling. |
| Aug 30, 2018 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 30, 2018 | Read third time. Passed. Ordered to the Senate. |
| Aug 21, 2018 | Read second time. Ordered to third reading. |
| Aug 20, 2018 | Read second time and amended. Ordered to second reading. |
| Aug 16, 2018 | From committee: Do pass as amended. (Ayes 12. Noes 0.) (August 16). |
| Aug 8, 2018 | August 8 set for first hearing. Placed on suspense file. |
| Jun 27, 2018 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 26, 2018 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 3.) (June 26). |
| Jun 21, 2018 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 5. Noes 2.) (June 20). Re-referred to Com. on JUD. |
| Jun 18, 2018 | Joint Rule 62(a) suspended. |
| Jun 18, 2018 | Referred to Coms. on L. & E. and JUD. |
| May 31, 2018 | In Assembly. Read first time. Held at Desk. |
| May 31, 2018 | Read third time. Passed. (Ayes 22. Noes 11.) Ordered to the Assembly. |
| May 29, 2018 | Read second time. Ordered to third reading. |
| May 25, 2018 | From committee: Do pass as amended. (Ayes 5. Noes 2.) (May 25). |
| May 18, 2018 | Set for hearing May 25. |
| Apr 30, 2018 | April 30 hearing: Placed on APPR. suspense file. |
| Apr 20, 2018 | Set for hearing April 30. |
| Apr 18, 2018 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 2.) (April 17). Re-referred to Com. on APPR. |
| Apr 13, 2018 | Set for hearing April 17. |
| Apr 11, 2018 | From committee: Do pass and re-refer to Com. on JUD. (Ayes 4. Noes 1.) (April 11). Re-referred to Com. on JUD. |
| Apr 4, 2018 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on L. & I.R. |
| Mar 16, 2018 | Set for hearing April 11. |
| Mar 1, 2018 | Referred to Coms. on L. & I.R. and JUD. |
| Feb 20, 2018 | From printer. May be acted upon on or after March 22. |
| Feb 16, 2018 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 31, 2018 | Unfinished Business SB1300 Jackson et al. Concurrence | Senate Floor |
Passed |
|
| Aug 30, 2018 | SB 1300 Jackson Senate Third Reading By FRIEDMAN | Assembly Floor |
Passed |
|
| Aug 16, 2018 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 26, 2018 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Judiciary |
Passed |
|
| Jun 20, 2018 | Do pass and be re-referred to the Committee on [Judiciary] | Assembly Standing Committee on Labor and Employment |
Passed |
|
| May 31, 2018 | Senate 3rd Reading SB1300 Jackson | Senate Floor |
Passed |
|
| May 25, 2018 | Do pass as amended | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 30, 2018 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 17, 2018 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 11, 2018 | Do pass, but first be re-referred to the Committee on [Judiciary] | Senate Standing Committee on Labor and Industrial Relations |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| AAUW | ** Support | Aug 30, 2018 |
| ACLU | ** Support | Aug 30, 2018 |
| Act for Women and Girls | ** Support | Aug 30, 2018 |
| Agricultural Council Of California | ** Against | Aug 30, 2018 |
| American Association of Univeristy Women | * Support | Apr 11, 2018 |
| American Association Of University Women California | * Support | Jun 20, 2018 |
| American Federation of State, County, and Municipal Employees | * Support | Jun 20, 2018 |
| American Insurance Association | ** Against | Aug 30, 2018 |
| American Staffing Association | * Against | Jun 20, 2018 |
| Associated General Contractors | ** Against | Aug 30, 2018 |
| Association Of California School Administrators | ** Against | Aug 30, 2018 |
| Association Of California Water Agencies | ** Against | Jun 24, 2018 |
| Beverly Hills Chamber Of Commerce | ** Against | Aug 30, 2018 |
| Brea Chamber of Commerce | ** Against | Aug 30, 2018 |
| CA Conference Board of the Amalgamated Transit Union | ** Support | Aug 30, 2018 |
| CA Conference of Machinists | ** Support | Aug 30, 2018 |
| California Ambulance Association | ** Against | Aug 30, 2018 |
| California Apartment Association | ** Against | Aug 30, 2018 |
| California Association For Health Services At Home | ** Against | Aug 30, 2018 |
| California Association Of Joint Powers Authorities | ** Against | Aug 30, 2018 |
| California Association Of Winegrape Growers | ** Against | Aug 30, 2018 |
| California Attractions And Parks Association | ** Against | Aug 30, 2018 |
| California Automotive Repair Coalition | ** Against | Aug 30, 2018 |
| California Bankers Association | ** Against | Aug 30, 2018 |
| California Business Properties Association | ** Against | Aug 30, 2018 |
| California Chamber Of Commerce | ** Against | Aug 30, 2018 |
| California Democratic Party | ** Support | Aug 30, 2018 |
| California Employment Law Council | * Against | Apr 17, 2018 |
| California Employment Law Council California Farm Bureau | ** Against | Jun 24, 2018 |
| California Employment Law Council California Farm Bureau Federation | ** Against | Aug 30, 2018 |
| California Employment Lawyers Association | ** Support | Aug 30, 2018 |
| California Hotel and Lodging Association | ** Against | Aug 30, 2018 |
| California Labor Federation | ** Support | Aug 30, 2018 |
| California Landscape Contractors Association | ** Against | Aug 30, 2018 |
| California League of Food Processors | ** Against | Aug 30, 2018 |
| California League of Food Producers | * Against | Apr 11, 2018 |
| California Manufacturers And Technology Association | ** Against | Aug 30, 2018 |
| California New Car Dealers Association California Restaurant Association | ** Against | Aug 30, 2018 |
| California Restaurant Association | ** Against | Jun 24, 2018 |
| California Retailers Association | ** Against | Aug 30, 2018 |
| California Rural Legal Assistance Foundation, Inc. | * Support | Jun 20, 2018 |
| California Special Districts Association | ** Against | Aug 30, 2018 |
| California Staffing Professionals (Csp) | * Against | Jun 20, 2018 |
| California State Association Of Counties | ** Against | Aug 30, 2018 |
| California Teamsters | ** Support | Aug 30, 2018 |
| California Trucking Association | ** Against | Aug 30, 2018 |
| California Women's Law Center | ** Support | Aug 30, 2018 |
| Cerritos Regional Chambers Of Commerce | ** Against | Aug 30, 2018 |
| Citizens Against Lawsuit Abuse | ** Against | Aug 30, 2018 |
| Civil Justice Association Of California | ** Against | Aug 30, 2018 |
| CompTIA | * Against | Jun 20, 2018 |
| Consumer Attorneys | ** Support | Aug 30, 2018 |
| Culver City Chamber of Commerce | ** Against | Aug 30, 2018 |
| Equal Rights Advocates | ** Support | Aug 30, 2018 |
| Family Business Association of California | ** Against | Aug 30, 2018 |
| Folsom Chamber Of Commerce | ** Against | Jun 24, 2018 |
| Fresno Chamber of Commerce | ** Against | Aug 30, 2018 |
| Gateway Chamber Alliance | ** Against | Aug 30, 2018 |
| Greater Bakersfield Chamber of Commerce | ** Against | Aug 30, 2018 |
| Greater Coachella Valley Chamber of Commerce | ** Against | Aug 30, 2018 |
| Greater Conejo Valley Chamber of Commerce | ** Against | Aug 30, 2018 |
| Greater Irvine Chamber of Commerce | ** Against | Aug 30, 2018 |
| Greater Riverside Chambers of Commerce | ** Against | Aug 30, 2018 |
| International Longshore and Warehouse Union | ** Support | Aug 30, 2018 |
| League Of California Cities | ** Against | Aug 30, 2018 |
| Legal Aid At Work | ** Support | Aug 30, 2018 |
| Long Beach Area Chamber of Commerce | ** Against | Aug 30, 2018 |
| Murrieta Chamber of Commerce | ** Against | Aug 30, 2018 |
| National Association of Mutual Insurance Companies | ** Against | Aug 30, 2018 |
| National Council of Jewish Women | ** Support | Aug 30, 2018 |
| National Federation Of Independent Business | ** Against | Aug 30, 2018 |
| Official Police Garages of Los Angeles | ** Against | Aug 30, 2018 |
| Orange County Business Council | ** Against | Aug 30, 2018 |
| Palm Desert Area Chamber of Commerce | ** Against | Aug 30, 2018 |
| Personal Insurance Federation Of California | ** Against | Aug 30, 2018 |
| Professional and Technical Engineers, IFPTE Local 21, AFL-CIO | ** Support | Aug 30, 2018 |
| Public Counsel | ** Support | Aug 30, 2018 |
| Rancho Cordova Chamber of Commerce | ** Against | Aug 30, 2018 |
| Redondo Beach Chamber of Commerce | ** Against | Aug 30, 2018 |
| SAG-AFTRA | ** Support | Aug 30, 2018 |
| San Gabriel Valley Economic Partnership | ** Against | Aug 30, 2018 |
| Santa Ana Chamber of Commerce | ** Against | Aug 30, 2018 |
| Santa Maria Valley Chamber of Commerce | ** Against | Aug 30, 2018 |
| SEIU California | ** Support | Aug 30, 2018 |
| South Bay Association of Chambers of Commerce | ** Against | Aug 30, 2018 |
| Southwest California Legislative Council | ** Against | Jun 24, 2018 |
| Stronger California Advocates Network | * Support | Jun 20, 2018 |
| The Women'S Foundation | ** Support | Aug 30, 2018 |
| UNITE-HERE, AFL-CIO | ** Support | Aug 30, 2018 |
| Utility Workers of America | ** Support | Aug 30, 2018 |
| Voices for Progress | ** Support | Aug 30, 2018 |
| We Said Enough | ** Support | Aug 30, 2018 |
| Western Center On Law And Poverty Inc. | * Support | Jun 20, 2018 |
| Western Growers Association | ** Against | Aug 30, 2018 |
| Wildomar Chamber Of Commerce | ** Against | Aug 30, 2018 |
| Wine Institute | ** Against | Aug 30, 2018 |
| Work Equity | * Support | Jun 20, 2018 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 1300
:
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/11/18
AYES: Pan, Jackson, Mitchell, Wieckowski
NOES: Stone
SENATE JUDICIARY COMMITTEE: 5-2, 4/17/18
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
SENATE FLOOR: 22-11, 5/31/18
AYES: Atkins, Beall, Bradford, De León, Dodd, Galgiani, Hernandez, Hertzberg, Hill, Jackson, Lara, Leyva, McGuire, Mitchell, Monning, Newman, Pan, Portantino, Skinner, Stern, Wieckowski, Wiener
NOES: Anderson, Bates, Berryhill, Cannella, Fuller, Gaines, Moorlach, Morrell, Nielsen, Stone, Vidak
NO VOTE RECORDED: Allen, Glazer, Hueso, Nguyen, Roth, Wilk
ASSEMBLY FLOOR: 41-33, 8/30/18 - See last page for vote
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
DIGEST:
This bill addresses the severe or pervasive standard for litigating sexual harassment claims and prohibits employers from requiring employees to sign a release of claims under the Fair Employment and Housing Act in exchange for a raise or as a condition of employment.
Assembly Amendments
remove language on sexual harassment training and the burden of proof on plaintiffs when alleging that an employer did not take the necessary steps to prevent harassment and discrimination in the workplace.
Existing law:
- Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
- Prohibits, explicitly, an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
- Defines an employer as any person regularly employing 5 or more individuals, directly or indirectly, except a religious association or non-profit. (Government Code §12926)
- Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
- Requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of assuming supervisorial duties and once every 2 years. (Government Code §12950.1)
- Extends liability for sexual harassment education and training to any person who regularly receives the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
- Provides that any person or class claiming to be aggrieved may file a complaint with the Department of Fair Employment and Housing (DFEH), but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed. (Government Code §§12960-12962)
This bill:
- Requires that employers provide information to each employee on how and to whom harassment should be reported and information on how to contact the DFEH to report a violation.
- Provides that, in an action alleging that an employer, labor organization, or other covered entity, failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, it shall suffice for the employee to show that:
- The employer knew that the conduct was unwelcome to the employee;
- The conduct would meet the legal standard for harassment or discrimination if it increased in severity or become pervasive; and
- The defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
- Limits attorney and expert witness fees for a prevailing defendant to cases where the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Prohibits requiring an employee to sign a release of a claim or right under the Fair Employment and Housing Act (FEHA) in exchange for a raise or bonus, or as a condition of employment or continued employment, unless the release is a voluntary negotiated settlement agreement filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.
- Prohibits requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
- Declares any release of claim or nondisparagement agreement described above to be contrary to public policy and unenforceable.
- Provides that an employer may provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.
- Declares the intent of the Legislature and provides guidance to California courts regarding the legal standard for application of laws regarding harassment in California’s workplaces.
Comments
Key Components of SB 1300: Broadly speaking, SB 1300 touches on two areas: the severe or pervasive standard for sexual harassment claims and disparagement agreements and releases of claims. Each is discussed below.
Severe or Pervasive Standard: As noted in a recent Senate Judiciary Committee backgrounder on California’s legal standard for sexual harassment, titled “Justice for Victims: Re-examining California’s Legal Standard for Sexual Harassment”, case law requires that a plaintiff prove that the sexual harassment that occurs in the workplace must be severe or pervasive enough to alter the conditions of employment due to the plaintiff’s sex. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462) If, on the other hand, the harassment is occasional or trivial, it will not rise to that legal bar. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283) As noted by the same backgrounder, this approach has drawn significant criticism from legal scholars who believe that this places an undue burden on plaintiffs to prove that they are the victim of discrimination.
SB 1300 declares the intent of the Legislature that harassment creates an environment that deprives workers of their statutory right to work in a place free of discrimination, and then cites Justice Ginsburg’s concurrence in Harris v. Forklift Systems (1993), which argued that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
SB 1300 also finds that a single incident of harassment creates a triable issue, striking the 9th Circuit’s opinion in Brooks. SB 1300 also declares that the existence of a hostile work environment is based on the totality of factors, and may include a single discriminatory remark, and, in that regard, affirms the decision in Reid v. Google (2010). However, SB 1300 declares its disapproval of Kelley v. Conco Companies (2011), arguing that all workplaces should be bound by a single legal standard for sexual harassment.
Finally, SB 1300 declares that harassment cases are rarely appropriate for summary judgment and affirms the decision in Nazir v. United Airlines, Inc. (2009).
Disparagement Agreements and Releases of Claims: SB 1300 prohibits employers from requiring employees to sign a release of claims under FEHA in exchange for a raise or as a condition of employment. Additionally, SB 1300 would prohibit requiring employees to sign nondisparagement agreements that inhibit the ability of an employee to disclose illegal acts in the workplace, including sexual harassment.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Assembly Appropriations Committee:
- Unknown General Fund costs to the Department of Fair Employment and Housing (DFEH). Costs to DFEH will depend on the number of claims as a result, but the exact cost is unknown. For example, more employees will receive sexual harassment training and better understand their rights under FEHA, but this additional workload may be offset by greater efforts to curb or prevent harassment in the workplace.
- Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
AAUW
Act for Women and Girls
ACLU
AFSCME
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Democratic Party
California Labor Federation
California Teamsters
California Women’s Law Center
Consumer Attorneys
Engineers and Scientists of CA, IFPTE Local 20, AFL-CO
International Longshore and Warehouse Union
Legal Aid at Work
National Council of Jewish Women
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
Public Counsel
SAG-AFTRA
SEIU California
UNITE-HERE, AFL-CIO
Utility Workers of America
Voices for Progress
We Said Enough
The Women’s Foundation
OPPOSITION: (Verified 8/28/18)
California Chamber of Commerce
Agricultural Council of California
American Insurance Association
Associated Builders and Contractors, Inc. – Northern California Chapter
Associated General Contractors
Association of California School Administrators
Beverly Hills Chamber of Commerce
Brea Chamber of Commerce
California Ambulance Association
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Association of Winegrape Growers
California Attractions and Parks Association
California Automotive Repair Coalition
California Bankers Association
California Business Properties Association
California Employment Law Council
California Farm Bureau Federation
California Hotel and Lodging Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California New Car Dealers Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California Trucking Association
Cerritos Regional Chambers of Commerce
Citizens Against Lawsuit Abuse
Civil Justice Association of California
Culver City Chamber of Commerce
Family Business Association of California
Fresno Chamber of Commerce
Gateway Chamber Alliance
Greater Bakersfield Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Irvine Chamber of Commerce
Greater Riverside Chambers of Commerce
League of California Cities
Long Beach Area Chamber of Commerce
Murrieta Chamber of Commerce
National Association of Mutual Insurance Companies
National Federation of Independent Business
Official Police Garages of Los Angeles
Orange County Business Council
Palm Desert Area Chamber of Commerce
Personal Insurance Federation of California
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
San Gabriel Valley Economic Partnership
Santa Ana Chamber of Commerce
Santa Maria Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Western Growers Association
Wildomar Chamber of Commerce
Wine Institute
ARGUMENTS IN SUPPORT: The sponsors of SB 1300, the California Employment Lawyers Association (CELA) and Equal Rights Advocates (ERA), argue the following:
“In recent months, sexual harassment has gained long-overdue attention as a large number of women (and some men) have come forward about their experiences with sexual harassment in the workplace. As we have learned from the many stories that have come to light, our laws have too often failed to protect workers from the kind of sexual harassment and discrimination that they were designed to prevent…. Our lawyers have found that there are significant gaps in the FEHA that have denied justice to victims of sexual harassment, that have allowed sexual perpetrators to evade its reaches, and that have generally allowed sexual harassment in the workplace to persist. SB 1300 addresses these gaps in the law by proposing several important reforms.
First, SB 1300 will provide statutory guidance on the “severe or pervasive” legal standard for sexual harassment claims, to ensure that the standard is consistently and fairly applied to protect victims of sexual harassment… For example, in Brooks v. City of San Mateo (2000) 229 F.3d 917, the plaintiff, Patricia Brooks, a 911 dispatcher, was responding to a 911 call when her coworker “placed his hand on her stomach and commented on its softness and sexiness.” …. The judge ruled that the conduct was not severe enough to give rise to a sexual harassment claim…. We believe it is a perverse reading of our anti-harassment laws to give perpetrators “one free grope,” as the court in Brooks did….
As we have seen in some of the recent high profile sexual harassment cases, employers and serial harassers have employed creative legal tactics to try to get around our anti-harassment and anti-discrimination laws. Some employers require workers to sign various legal documents, as a condition of employment, as a way to silence victims, escape liability, or minimize public scrutiny…. SB 1300 will make it an unlawful employment practice for an employer 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. The bill would also prohibit an employer from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”
ARGUMENTS IN OPPOSITION: The California Chamber of Commerce opposes this bill, arguing:
“While intent language is rarely opposed in a bill, the intent language of SB 1300 is very concerning. Through this language, SB 1300 substantially lowers the standard for what constitutes severe or pervasive behavior with regard to actionable harassment claims. Under current law, in order for harassment or discrimination to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment. Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment – an environment that a reasonable person would find hostile or abusive – is beyond [FEHA’s] purview.” Aguilar v. Avis Rent a Car System, Inc., 21 Cal.4th 121, 129-130 (1999)…
SB 1300 prohibits the use of a general release in exchange for a raise or bonus or as a condition of employment or continued employment. This is a concern because without the ability to use general releases, employers will not provide severance agreements. Even where there is no indication of an underlying claim, an employee is often provided additional compensation in exchange for a general release when an employment relationship ends. This is beneficial to most employees, especially to someone who needs additional funds and time to find new employment.
SB 1300 also provides a disincentive to employers to take remedial action, such as wage and hour self-audits. Self-audits are extremely burdensome, time consuming and expensive. This is not a task that employers take lightly and, if an employer is not permitted to utilize a general release of claims in exchange for a “bonus” or “raise,” it may discourage employers from conducting self-audits.”
ASSEMBLY FLOOR: 41-33, 8/30/18
AYES: Arambula, Berman, Bloom, Bonta, Burke, Caballero, Calderon, Carrillo, Chau, Chiu, Chu, Eggman, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez Fletcher, Holden, Jones-Sawyer, Kalra, Kamlager-Dove, Levine, Limón, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Quirk, Reyes, Rivas, Rubio, Santiago, Mark Stone, Thurmond, Ting, Weber, Wood, Rendon
NOES: Acosta, Travis Allen, Baker, Bigelow, Brough, Cervantes, Chávez, Chen, Choi, Cooley, Cunningham, Dahle, Daly, Flora, Fong, Frazier, Gallagher, Gray, Harper, Irwin, Kiley, Lackey, Low, Mathis, Mayes, Melendez, Obernolte, O'Donnell, Patterson, Quirk-Silva, Steinorth, Voepel, Waldron
NO VOTE RECORDED: Aguiar-Curry, Cooper, Grayson, Maienschein, Rodriguez, Salas
8/30/18 20:21:26
**** END ****
SENATE THIRD READING
STR Bill Id:SB 1300
Author:(Jackson)
As Amended Ver:August 20, 2018
Majority vote
SENATE VOTE: 22-11
Committee | Votes | Ayes | Noes |
Labor | 5-2 | Thurmond, Gonzalez Fletcher, Jones-Sawyer, Kalra, Rivas | Flora, Steinorth |
Judiciary | 7-3 | Mark Stone, Chau, Chiu, Holden, Kalra, Reyes, Gabriel | Cunningham, Kiley, Maienschein |
Appropriations | 12-0 | Gonzalez Fletcher, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Friedman, Eduardo Garcia, Nazarian, Quirk, Reyes |
|
SUMMARY: Amends the anti-harassment provisions of the Fair Employment and Housing Act (FEHA) to expand potential employer liability to all forms of harassment by nonemployees, adds permissive training requirements, prohibits most non-disparagement agreements and releases of claims, limits the payment of prevailing defendant attorney's fees, and address chaptering out issues with SB 1038 (Leyva) of the current legislative session.
EXISTING LAW:
- Provides that it is an unlawful employment practice, for an employer, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to, among other things, discharge, harass, or discriminate against the person.
- Provides that it is an unlawful employment practice, for an employee, because of any of the above characteristics, to harass another person, if the employer, or its agents or supervisors, knows or should have known of this conduct and failed to take immediate and appropriate corrective action.
- Extends liability to employers for the acts of nonemployees with respect to sexual harassment if the employer, or its agents or supervisors, knows or should have known of the conduct and failed to take immediate and appropriate corrective action.
- Requires employers to take all reasonable steps necessary to prevent harassment from occurring.
- Requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming their position and once every two years thereafter.
- Authorizes the courts in specified circumstances to award the prevailing party in a civil action reasonable attorney's fees and costs, including expert witness fees.
FISCAL EFFECT: According to the Assembly Appropriations Committee, minor and absorbable costs.
COMMENTS: The scope of this bill was significantly narrowed in the Assembly Appropriations Committee by removing language requiring employers to provide sexual harassment training, including bystander intervention training, to all employees within six months, as well as eliminating language that employers who fail to take reasonable steps to prevent harassment may be liable if the conduct continues so as to become severe or pervasive.
Analysis Prepared by: Megan Lane / L. & E. / (916) 319-2091 FN: 0004253
Date of Hearing: August 8, 2018
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez Fletcher, Chair
SBPCA Bill Id:SB 1300
Author:(Jackson) – As Amended Ver:June 27, 2018
Policy Committee: | Labor and Employment | Vote: | 5 - 2 |
Judiciary | 7 - 3 | ||
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill makes several changes to the Fair Employment and Housing Act (FEHA) related to sexual harassment training, non-disparagement agreements, the awarding of attorney’s fees, and requirements for bringing an action for failure to prevent discrimination or harassment. Specifically, this bill:
- Expands sexual harassment prevention training by requiring all employers subject to FEHA to provide training and requires training be provided to all employees. This bill also requires bystander intervention training, as defined, to be included in sexual harassment prevention training.
- Prohibits an employer from requiring, in exchange for a raise or a bonus or as a condition of employment, an employee to sign a release of a claim or right under FEHA or an agreement or a non-disparagement agreement, as defined.
- Limits attorney and expert witness fees for a prevailing defendant to cases where the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Requires that, in an action alleging an employer, labor organization, employment agency, or specified training program failed to take all reasonable steps necessary to prevent discrimination and harassment, a plaintiff must prove the employer knew the conduct was unwelcome to the plaintiff and would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive and the defendant failed to take reasonable steps to prevent the same or similar conduct from occurring.
FISCAL EFFECT:
- Unknown General Fund costs to the Department of Fair Employment and Housing (DFEH). Costs to DFEH will depend on the number of claims as a result, but the exact cost is unknown. For example, more employees will receive sexual harassment training and better understand their rights under FEHA, but this additional workload may be offset by greater efforts to curb or prevent harassment in the workplace.
- Unknown costs across all state departments related to the expansion of sexual harassment prevention training to nonsupervisory employees. (General Fund and Special Fund.)
COMMENTS:
- Purpose. According to the author, SB 1300 seeks to comprehensively address harassment in the workplace. The author notes that the #MeToo and #WeSaidEnough movement that began in 2017 has showcased how common sexual harassment is across industries and the harmful impact on survivors.
- Major provisions. This bill aims to help curb sexual harassment in the workplace through changes to existing training programs and the definitions of unlawful practices related to harassment and discrimination. These include changes to:
- FEHA training requirements. FEHA requires all employers with 50 or more employees to provide at least two hours of sexual harassment training to each supervisory employee within six months of being hired into that position and once every two years thereafter. It also requires employers with five or more employees to post a copy of a poster discussing prohibitions against discrimination and harassment. SB 1300 expands these requirements to mandate training for all employees and all covered employers, regardless of their size, and adds bystander intervention raining to the required content of the training.
- Legal standard for workplace harassment. Existing law makes it unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. The legal standard for harassment in the workplace has been an enduring question for the courts, and one key element in deciding whether conduct is harassment is whether or not it is “severe or pervasive.” SB 1300 expands on current law by adding additional detail to how an employee shows that an employer fails to take the steps necessary to prevent harassment and discrimination. Specifically, the bill allows an employee to bring an action where the employer knew of harassing, inappropriate, and unwelcome conduct that was in danger of becoming severe or pervasive but did nothing to stop the contact.
- Related legislation. There are a number of bills introduced in the second year of the 2017-18 Legislative Session that expand or modify sexual harassment training requirements and bolster protections for workers who file claims of sexual harassment in the workplace.
- Training bills. Two other bills with additional training requirements are being heard today in this committee: SB 1343 (Mitchell), which expands the reach of workplace sexual harassment prevention training requirements to include all employees and all workplaces with more than five employees, and SB 1223 (Galgiani), which directs the California Department of Industrial Relations (DIR) to develop a harassment and discrimination prevention policy and training standard for the construction industry.
In addition to the above-cited bills, AB 3081 (Gonzalez Fletcher) includes provisions in the Labor Code requiring employers with more than 25 employees to train all nonsupervisory employees at the time of hire and at least once every two years about identifying, preventing, and reporting sexual harassment in the workplace. AB 2338 (Levine) requires talent agencies to provide training on sexual harassment to employees. AB 2358 (Carrillo) requires apprenticeship programs to have policies and provide training to protect apprentices from harassment. All three bills’ provisions are under the jurisdiction of the Department of Industrial Relations (DIR) and are pending in the Senate Appropriations Committee.
- Retaliation, liability, and employee protections. Moreover, a number of other bills add or bolster protections for employees who face sexual harassment in the workplace. These include SB 1038 (Leyva), which imposes joint and several liability on an employee who retaliates against anyone else for filing a complaint, testifying, assisting in a proceeding or, otherwise opposing harassment and discrimination, and is pending on the Assembly Floor. AB 3080 (Gonzalez Fletcher) prohibits requiring a job applicant from being required to waive their rights to a judicial forum as a condition of employment, and AB 1870 (Reyes) extends the statute of limitations for filing a claim of harassment, discrimination, or retaliation. Both those bills are pending in the Senate Appropriations Committee.
Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081
Date of Hearing: June 26, 2018
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SBPCA Bill Id:SB 1300
Author:(Jackson) – As Amended Ver:May 25, 2018
As Proposed to be Amended
SENATE VOTE: 22-11
SUBJECT: Unlawful employment practices: discrimination and harassment
KEY ISSUES:
- Should employers with five or more employees provide sexual harassment prevention training to all employees (not just supervisors), and should THE training content be expanded to include bystander intervention training?
- should an employer have a legal duty to take reasonable steps to prevent inappropriate and unwelcome workplace conduct from rising to the level of severe and pervasive conduct?
- should the court, in an action brought under the Fair Employment and Housing Act, deny a prevailing defendant reasonable attorney's fees and court costs, unless the court finds that the action was frivolous?
- should an employer be prohibited from making an employee sign an agreement that releases claims against the employer or that prevents an employee from disclosing unlawful workplace acts, in exchange of a raise or bonus, or as a condition of employment or continued employment?
SYNOPSIS
This bill makes several changes to the anti-harassment provisions of the Fair Employment and Housing Act (FEHA). These changes are designed to prevent workplace harassment from occurring in the first place and to make it easier for victims of harassment to obtain justice. Specifically, this bill seeks to improve sexual harassment prevention training; encourage employers to take reasonable steps to curtail inappropriate workplace conduct before it reaches the actionable level of "severe or pervasive"; prohibit agreements that shield sexual harassers; and clarify that in actions brought under FEHA it is inappropriate to allow the defendant to recover fees and costs unless the court finds that the action was frivolous. In addition, this bill sets forth legislative findings and declarations that offer guidance to the courts by identifying those cases that, in the opinion of the Legislature, set the appropriate standard for determining when conduct is sufficiently "severe or pervasive" to constitute actionable or unlawful sexual harassment. This measure is co-sponsored by the California Employment Lawyers Association and Equal Rights Advocates and supported by several women's groups and labor organizations. The measure is opposed by several business and employer groups, including the California Chamber of Commerce, who fear that it will lead to more litigation. This bill previously passed out of the Assembly Committee on Labor and Employment on a 5-2 vote.
SUMMARY: Makes several changes to the Fair Employment and Housing Act (FEHA) relating to sexual harassment training, non-disclosure and non-disparagement agreements relating to an employer's FEHA violations, the awarding of attorney's fees, and requirements for bringing an action for failure to prevent discrimination or harassment. Specifically, this bill:
- Provides that in an action alleging an employer's failure to prevent discrimination and harassment from occurring, the employee must show all of the following:
- That the employer knew the conduct was unwelcome to the employee.
- That the conduct would meet the legal standard for harassment or discrimination if it increased in severity or became pervasive.
- That the defendant failed to take all reasonable steps to prevent the same or similar conduct from occurring.
- Expands sexual harassment prevention training by requiring all employers subject to FEHA (not just employers with 50 or more employees) to provide training, and requires training be provided to all employees (not just supervisory employees).
- Requires employers, as part of its sexual harassment prevention training, to provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take appropriate action when they observe problematic behavior.
- Requires employers to provide information to each employee on how and to whom harassment should be reported, including information on how to contact the Department of Fair Employment and Housing (DFEH) to make a complaint regarding a violation of the laws regarding workplace discrimination, harassment, and retaliation.
- Makes it an unlawful employment practice for an employer, in an exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
- Require an employee to sign a release stating that the employee does not possess any claim or injury against the employer or other covered entity, and includes the release of a right to file and pursue a civil action or complaint with, or otherwise notify a state agency, law enforcement agency, court, or other governmental entity.
- Require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
- Provides that in a civil action brought under FEHA a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Makes findings and declarations related to the proper judicial standard for finding that conduct is sufficiently "severe or pervasive" to constitute sexual harassment.
EXISTING LAW:
- Defines, under FEHA, an employer as a person regularly employing five or more individuals, directly or indirectly, except for religious associations and non-profits. (Government Code Section 12926 (d). All further statutory references are to the Government Code unless otherwise stated.)
- Requires employers with 50 or more employees or using the services of 50 or more independent contractors, to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees, as specified. (Section 12950.1 (a).)
- Specifies various requirements for sexual harassment education and training, including that it must meet the following criteria:
- Be presented by persons with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
- Include information and practical guidance on federal and state statutes concerning sexual harassment and the remedies available to victims of sexual harassment in the employment context.
- Contain a component on the prevention of “abusive conduct," as defined, in the workplace.
- Include a component on harassment based on gender identity, gender expression, and sexual orientation. (Section 12950.1 (a) and (c).)
- Provides that an employer or other covered entity may be liable for workplace sexual harassment of an employee, applicant, unpaid intern or volunteer, or person providing services pursuant to a contract, by a non-employee, if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Section 12940 (j)(1).)
- Considers it to be an unlawful employment practice for an employer or other covered entity to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Section 12940 (k).)
- Specifies the steps for filing a complaint with the DFEH, including the type of information that must be supplied and the timeframe for filing such complaints. (Section 12960.)
- Permits the courts to use discretion in awarding reasonable attorneys’ fees and costs to a plaintiff who prevails on a claim for workplace discrimination, harassment, or retaliation, or other violations of FEHA. (Section 12965 (b).)
- Provides that if, during the course of litigation, an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover post-offer costs and shall pay the defendant’s post-offer costs. (Civil Code of Procedure Section 998.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: Events of the past year have brought renewed attention to an old problem: seemingly entrenched workplace behaviors and attitudes that tolerate or dismiss sexual harassment, most often but not exclusively against women. Like many bills that have come before the Assembly Judiciary Committee this session, this measure responds to the well-publicized revelations of sexual harassment in educational, professional, and political settings, including, not least of which, the California State Legislature. This bill would amend several provisions of the Fair Employment and Housing Act in order to improve sexual harassment prevention training; encourage employers to take reasonable steps to curtail inappropriate workplace conduct before it reaches the actionable level of "severe or pervasive"; prohibit agreements that shield sexual harassers; and clarify that, in actions brought under FEHA, it is inappropriate to allow the defendant to recover fees and costs unless the court finds that the plaintiff's action was frivolous. In addition, this bill sets forth legislative findings and declarations that offer guidance to the courts by identifying those cases that, in the Legislature's view, set the appropriate standard for determining when harassing workplace conduct is sufficiently "severe or pervasive" to constitute actionable or unlawful sexual harassment.
The author explains the origins and purpose of the bill as follows:
Beginning in 2017, propelled by movements such as #MeToo and #WeSaidEnough, brave women began coming forward and exposing the prevalence of sexual harassment in the workplace. Along with showcasing how common sexual harassment is across industries and the harm it afflicts on victims’ emotional well-being, their careers and earnings, these stories shed light on the complex legal and cultural factors that enable sexual harassment to occur unchallenged in the workplace. . . .
SB 1300 seeks to comprehensively address harassment in the workplace by prohibiting legal tactics that prevent victims from speaking out about abuse and seeking justice; strengthening sexual harassment training; holding employers accountable to their duty to prevent harassment; and providing guidance to the courts to ensure that the “severe or pervasive” legal standard is fairly applied to protect victims.
Sexual harassment under existing state and federal law. The Legislature has made efforts over the years to protect individuals who are likely to be victims of sexual harassment by adding provisions to various parts of the California code. However, the primary statute prohibiting workplace discrimination against protected classes of persons is Government Code Section 12940, which is part of FEHA. State law mirrors the anti-discrimination provisions in federal law, most notably Title VII of the Civil Rights Act of 1964. Title VII prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Under Title VII, sexual harassment is considered a form of discrimination on the basis of sex. (Meritor Savings Bank v. Vinson (1986) 477 U.S. 57; Ellison v. Brady (9th Cir. 1991) 924 F.2d 872.) Courts have generally identified two types of sexual harassment. "Quid pro quo" harassment usually takes the form of offering or withholding a job benefit in exchange for sexual favors. A second and more common type of sexual harassment creates a "hostile work environment." Generally speaking, "hostile work environment" harassment is much more difficult to define than "quid pro quo" harassment, but it can be every bit as damaging and degrading.
Judicial standards for finding a "hostile work environment." For the most part, California case law interpreting the anti-discrimination and anti-harassment provisions in FEHA follows federal case law interpreting Title VII. Indeed, it is not uncommon for plaintiffs to bring a FEHA claim and a Title VII claim in the same lawsuit. To prevail on a hostile work environment claim under FEHA or Title VII, an employee must show that the harassing conduct was "severe or pervasive" enough to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees. (See, e.g., McKenna v. Permanente Medical Group (2012) 894 F.Supp. 2d 1258; Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17.)
Although a key element in finding a hostile work environment is conduct that is "severe or pervasive," state and federal courts have quite sensibly refused to provide a fixed definition of what constitutes "severe" or "pervasive" conduct. It is necessarily rather nebulous, with courts holding that what is severe or pervasive under FEHA depends upon the "totality of the circumstances," taking into account a number of "factors." Those factors may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating or a "merely offensive" utterance; and, perhaps most essentially, whether it unreasonably interferes with an employee's work performance. (See, e.g., Day v Sears Holding Corp. (2013) 930 F.Supp.2d 1146; Pinder v. EDD (2017) 227 F.Supp.3d 1123; Jones v. Department of Corrections (2007) 152 Cal.App.4th 1367; Robles v. Agreserves, Inc. (2016) 158 F.Supp.3d 952.) These "factors" can be frustratingly circular: a factor to determine whether conduct is "severe" is "its severity," and a factor to determine if it is "pervasive" is its "frequency."
One thing seems clear, however – the standard is "severe or pervasive," not "severe and pervasive." If conduct is very severe, it need not be pervasive or frequent. If conduct is sufficiently "pervasive" (meaning it happens frequently), then it need not be "severe." Courts differ, however, as to whether a single incident is so severe that it would constitute a hostile work environment. Courts have generally required a "concerted pattern" of harassment and have held that a one-time, isolated incident is usually not enough to create a hostile work environment unless it consists of a physical assault or a threat thereof. (See, e.g., Landucci v. State Farm Insurance Co. (2014) 65 F.Supp.3d 694.) Perhaps the most extreme view that a single incident would need to be exceedingly severe in order to create a hostile work environment appeared in a 9th Circuit Court of Appeal ruling authored by Judge Kozinski in 2000. In that case, a dispatcher was physically assaulted by a co-worker who forced his hands under the dispatcher's sweater and fondled her breasts while she was on a call. While Judge Kozinski conceded that a single incident "might" be sufficient to establish a hostile work environment, he did not find the fellow dispatcher's conduct in this case sufficiently severe. In support of this, Kozinski cited a case in which the court did find a single instance sufficient. In that case, the defendant "slapped [the plaintiff], tore off her shirt, beat her, hit her on the head with a radio, choked her with a phone cord and ultimately forced her to have sex with him." (Brooks v. City of San Mateo (2000) 229 F.3d 917.) Astonishingly, Judge Kozinski opined that only a comparable level conduct would be sufficiently "severe" if it only happened once. [Judge Kozinski abruptly announced his retirement from the 9th Circuit Court late last year after several allegations of sexual harassment were made against him. (New York Times (Dec. 18, 2017).)]
Legislative guidance to the courts. At least partly in response to the decisions like the one in Brooks, this bill's findings and declarations seek to provide guidance to the courts by identifying a number of cases that the Legislature finds to be either appropriately or inappropriately decided. For starters, the findings and declarations assert the Legislature's rejection of Brooks and states that "the decision shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of FEHA." The findings and declarations also declare that the Legislature affirms the following rulings: Justice Ginsburg's concurrence in Harris v. Forklift Systems, holding that a plaintiff need not show that her productivity has declined as a result of harassment; the ruling in Reid v. Google (2010) 50 Cal.4th 512, rejecting the "stray remarks doctrine" and thereby allowing a court to consider "stray remarks" uttered by a non-decisionmaker; and the ruling in Nazir v. United Airlines (2009) 178 Cal.App.4th 191, holding that harassment cases are rarely appropriate for disposition on summary judgment. It is not at all clear what impact the guidance offered in these non-binding findings and declarations will have on how the courts decide cases, but it does at least put forward the Legislature's understanding of appropriate legal standards.
Enhanced training requirements and bystander intervention. This bill would strengthen sexual harassment prevention training in three ways. First, where existing law only requires employers to provide sexual harassment to supervisory employees, this bill would require training for all employees. Second, where existing law only requires employers with 50 or more employees to provide sexual harassment prevention training, this bill would require employers with five or more employees (those subject to FEHA generally) to provide training. Third, this bill would require companies to incorporate "bystander intervention training" as part of the mandatory sexual harassment prevention training.
Training on bystander intervention is intended to address the well-documented phenomenon known as the bystander effect: the tendency for individuals to refrain from providing help to a victim when they are in the presence of other people. Numerous social psychological studies demonstrate that individuals are less likely to intervene in emergency situations when they are in the presence of others relative to when they are alone. Several factors contribute to this phenomenon – feelings that responsibility for intervening is shared amongst others present in the situation, fears about breaching social norms, and uncertainty about the situation.
Bystander intervention training is aimed at empowering individuals to aid others and speak up about problematic behaviors. In terms of the efficacy bystander intervention training, a 2017 New York Times article describes recent research on the topic, stating:
One study found that soldiers who received the training were significantly more likely than those who did not to report having taken action when they saw assault or harassment. Another found that it changed college students’ attitudes regarding sexual violence and individuals’ ability to stop it, a change measurable both immediately after the training and a year later.
However, the article notes that such trainings are still rare in corporate settings, and thus it is unclear how effective such education efforts would be at addressing workplace harassment. ("Sexual Harassment Training Doesn’t Work. But Some Things Do," New York Times (Dec. 11, 2017).)
The California Manufacturers and Technology Association (CMTA), in addition to opposing the bill for the reasons articulated by the Chamber of Commerce (see below), wrote a separate letter of opposition focused entirely on the issue of bystander intervention training. CMTA supports training on how to recognize and report sexual harassment, but it fears that training in bystander intervention will send a message to employees that they are expected to intervene in potentially volatile situations, some of which could escalate into physical altercations. Moreover, CMTA contends that instances of harassment and discrimination "should be elevated through the proper supervisory channels and not left for individual employees to handle."
While CMTA raises legitimate concerns, it seems likely that any training worth the name would clarify that an employee need not intervene in every situation, especially if it could lead to a violent altercation, and that whatever safe and reasonable steps the employee might take, this would not preclude reporting the incidents through the proper supervisory channels.
Limitations on release of claims and non-disparagement agreements. Recent allegations of sexual harassment have revealed that harassers often settle cases with agreements that require the victim to remain quiet about the underlying facts of the allegations or that require the victim to waive any right to bring an action against the harasser in the future. These secrecy provisions keep the sexual harassment hidden from public view and allow the harasser to continue abusing others. In response to this problem, SB 1300 prohibits employers from requiring an employee, in exchange for a raise or bonus, or as condition of employment, to sign a "release of claim or right" by which the employee disavows any claim of injury and releases any right to pursue a civil action against the employer. The bill also prohibits an employer from requiring an employee to sign a nondisparagement agreement that purports to deny the employee the right to disclose information about unlawful workplace activity. In this regard, the bill complements SB 520 (Leyva), which, subject to certain exceptions, prohibits settlement agreements with secrecy provisions in sexual harassment cases. (The Committee will hear SB 520 next week.)
Opponents claim – while the author and proponents deny – that these provisions will also prohibit severance packages that contain standard releases or nondisparagement agreements. Whether this provision applies to a severance package will depend upon whether a court deems a severance agreement as involving a "condition of employment or continuing employment." On the one hand, because severance agreements are negotiated while there is still an employment contract, are often based upon an employee's term of service, and define the conditions upon which the employment relation will terminate, one could argue that they are related to "conditions of employment or continued employment." On the other hand, one could argue that because a severance payment is awarded only after the employment relation has ended it, by definition, does not involve a condition of employment. However a court might interpret this, it is not entirely clear why proponents would not want to have the same restrictions apply to a severance agreement. Surely a severance agreement that hides unlawful conduct or sexual harassment is just as harmful to society and future victims as a settlement agreement, claim release, or nondisparagement agreement that prohibits disclosure of unlawful conduct and sexual harassment.
Limitation on a prevailing employer's right to fees and costs. SB 1300 provides that a prevailing defendant in a FEHA action is only entitled to attorney's fees and costs if a court finds that the plaintiff's action was "frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so." The bill specifies that this restriction applies notwithstanding Section 998 of the Code of Civil Procedure. That statute provides that if a plaintiff rejects a settlement offer and then fails to obtain a more favorable judgment at trial, then the plaintiff is not entitled to post-offer fees and costs and must pay the post-offer fees and costs of the defendant. Therefore, under this bill, if a plaintiff rejects an offer and then fails to obtain a more favorable judgment, the employer would not be allowed to recover post-offer fees and costs unless the court finds that the action was frivolous or without merit, or that the plaintiff continued to litigate after the settlement offer even though it had become apparent that the case was without merit.
When it comes to awarding attorney's fees and court costs, California follows the so-called "American Rule" where each party is responsible for its own fees and costs unless a statute provides otherwise. (This contrasts with the "English Rule" which says that the losing side pays the prevailing party's fees and costs unless a statute provides otherwise.) California has several statutes that permit or require the court to award attorney's fees to the prevailing party. In civil rights cases or actions that serve a broader public purpose, statutes sometimes restrict the award of fees and costs to a prevailing plaintiff. The rationale for one-sided fee-shifting is to encourage plaintiffs to bring cases that validate an important civil right or serve a broader public purpose. Most relevant to this bill, however, Government Code Section 12960(d) provides that, in FEHA actions, a court has discretion to award attorney's fees and cost to the "prevailing party," whether the plaintiff or the defendant. However, some California courts have held that despite "its discretionary language, the statute applies only if the plaintiff’s lawsuit is deemed unreasonable, frivolous, meritless, or vexatious." (Roberts v. Stanford University (2014) 224 Cal.App.4th 67, citing Mangano v. Verity, Inc. (2008) 167 Cal.App.4th 944, 948.)
In short, the provision in this bill limiting the ability of a prevailing defendant to recover fees and costs unless the plaintiff's case is deemed frivolous or without merit appears to codify existing case law.
Special (k): A duty to prevent harassing conduct from becoming severe or pervasive. Perhaps the most controversial feature of the bill from the opposition's point of view – and the apparent reason the bill is on the California Chamber of Commerce "job killer" list – is the provision clarifying the employer's duty to "prevent" harassment from occurring and specifying that an employee may have a cause of action, even though the harassing conduct does not yet meet the legal standard of "severe or pervasive," if the employer knows about the conduct and fails to take any action.
In order to understand how this bill would modify existing law it is important to understand the existing structure of Government Code Section 12940. This section, the heart of FEHA, identifies a number of "unlawful employment practices" that constitute discrimination or harassment on the basis of race, sex, or some other "protected class." Most relevant to this bill, subdivision (j) makes it unlawful for a business or other covered entity (e.g., labor union, employment agency, etc.) to harass an employee (or applicant, trainee, etc.) because of the employee's membership in a protected class. FEHA follows Title VII and federal case law in defining harassment as a form for sex discrimination. An employer is liable for harassment if the employer commits the harassing conduct or if the employer knows or should have known about the harassing conduct and fails to take immediate and corrective action. This subdivision also states that a covered entity "shall take all reasonable steps to prevent harassment from occurring."
Existing subdivision (k) – which this bill would amend – makes it an unlawful for a business or other covered entity to "to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Emphasis added.) Given that subdivision (j) already makes an employer liable for failing to take corrective action after harassment as occurred, it seems reasonable to assume that subdivision (k) require the employer to "prevent" discrimination and harassment by taking action before harassment occurs. Any other reading would mean that subdivision (k) does not add anything beyond what is provided in subdivision (j). According to the sponsor and other practicing employment lawyers who have communicated with the Committee, under existing law there appears to be some confusion as to whether subdivision (k) stands alone as an independent cause of action or whether it was meant to be brought in conjunction with subdivision (j). That is, under (j) the employee alleges that the harassment occurred, and under (k) the employee alleges that the employer failed to take all reasonable steps to prevent it from occurring. The problem with this approach, however, is that it requires the harassing conduct become actionable before there is any duty to take action to stop it. Such a requirement seems inefficient and contrary to the interest of both employer and employee.
This bill would effectively allow an employee to bring an action where the employer knew of harassing, inappropriate, and unwelcome conduct that was in danger of becoming "severe or pervasive" but did nothing to stop the conduct even though the employer knew of it. As noted above, the standard for determining whether conduct is "severe or pervasive" is not an exact science; it is necessarily a matter of degrees, and different people may have different understandings as to when behavior crosses a line to become actionable. While not everyone would agree where to draw that line, there are clearly some forms of conduct that, by any standard, are unwelcome and inappropriate even though there may be some doubt as to whether the conduct would meet the legal standard of severe or pervasive. One could argue that this bill merely clarifies what is already implicit in subdivision (k), if that subdivision is to have any meaning: an employer has a duty to "prevent" clearly unwelcome and inappropriate conduct before it becomes severe or pervasive. It would make no sense to say that an employer has a duty to "prevent" discrimination and harassment from occurring, but that the employer's duty (and the employee' corresponding right) does not kick in until after the discrimination and harassment has occurred.
Opponents contend that this provision of the bill will make employers liable for the slightest off-color remark or innocent physical contact, because almost any comment or contact could, in time, increase in severity or become pervasive. The problem, opponents suggest, is that at the time the conduct occurs there is no way to know if the remarks or contact will become severe or pervasive – until they do. While the opponents raise a reasonable concern, common sense suggests that between the innocent remark or physical gesture and full-blown severe or pervasive harassment is conduct that a reasonable person would agree is unwelcome, inappropriate, and approaching, if not yet, over the line. In that case, an employer not only has a duty, but seemingly an economic interest, to heed the warning signs to take reasonable steps to prevent conduct from escalating into actionable harassment and a lawsuit. If existing subdivision (k) does not require this, it is not clear what function subdivision (k) serves, because subdivision (j) already requires the employer to take corrective and preventive steps after harassment occurs.
Author's Proposed Amendments: The author proposes the following technical amendments:
- On page 17, lines 8-9, change "Civil Code" to "Code of Civil Procedure"
- On page 10, line 27, change "plaintiff" to "employee."
- On page 10, line 30, change "plaintiff" to "employee"
REGISTERED SUPPORT / OPPOSITION:
Support
California Employment Lawyers Association (co-sponsor)
Equal Rights Advocates (co-sponsor)
AAUW
Act for Women and Girls
ACLU
AFSCME
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Labor Federation
California Teamsters Public Affairs Council
California Women's Law Center
Consumer Attorneys of California
Engineers and Scientists of CA, IFPTE Local 20, AFL-CO
International Longshore and Warehouse Union
Legal Aid at Work
National Council of Jewish Women, California
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
Public Counsel
SAG-AFTRA
SEIU California
The Women’s Foundation of California
UNITE-HERE, AFL-CIO
Utility Workers of America
Voices for Progress
We Said Enough
Opposition
Agricultural Council of California
Associated Builders and Contractors, Inc. – Northern California Chapter
Associated General Contractors
Association of California Water Agencies
Brea Chamber of Commerce
California Ambulance Association
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Chamber of Commerce
California Employment Law Council
California Farm Bureau
California Hotel and Lodging Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California Trucking Association
Cerritos Regional Chambers of Commerce
Citizens Against Lawsuit Abuse
Civil Justice Association of California
Culver City Chamber of Commerce
Family Business Association of California
Folsom Chamber of Commerce
Fresno Chamber of Commerce
Gateway Chamber Alliance
Greater Bakersfield Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Irvine Chamber of Commerce
Long Beach Area Chamber of Commerce
Murrieta Chamber of Commerce
National Association of Mutual Insurance Companies
National Federation of Independent Business
Official Police Garages of Los Angeles
Orange County Business Council
Palm Desert Area Chamber of Commerce
Personal Insurance Federation of California
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
San Gabriel Valley Economic Partnership
Santa Ana Chamber of Commerce
Santa Maria Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Western Growers Association
Wildomar Chamber of Commerce
Wine Institute
Analysis Prepared by: Thomas Clark and Sandra Nakagawa / JUD. / (916) 319-2334 319-2334
Date of Hearing: June 20, 2018
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Tony Thurmond, Chair
SBPCA Bill Id:SB 1300
Author:(Jackson) – As Amended Ver:May 25, 2018
SENATE VOTE: 22-11
SUBJECT: Unlawful employment practices: discrimination and harassment
SUMMARY: Requires sexual harassment training for both supervisory and non-supervisory employees of most employers, adds a bystander intervention training requirement, prohibits non-disparagement agreements and the releasing of claims for workplace discrimination or harassment, and clarifies the legal standard for harassment. Specifically, this bill:
- Requires that in an action alleging that an employer, labor organization, employment agency, or specified training program failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, a plaintiff shall prove the following elements:
- 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 reasonable steps to prevent the same or similar conduct from recurring.
- Provides that an employer may be liable for an act of a nonemployee with respect to any type of harassment, not just sexual harassment, committed toward employees, job applicants, and others, as specified, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
- Prohibits an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
- Require an employee to sign a release of a claim or right under the Fair Employment and Housing Act (FEHA).
- Require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including but not limited to, sexual harassment.
- Declares that a release or agreement in violation of the above provision is contrary to public policy and unenforceable.
- Extends the two-hour sexual harassment training requirement to all employees of employers who employ 5 or more employees. The training must be provided within 6 months of hire and then once every 2 years.
- Requires employers to include bystander intervention training, as specified, as part of the sexual harassment training and to provide information on how and to whom harassment should be reported as well as the process to make a complaint.
- Permits the awarding of fees and costs to a prevailing defendant in an action brought under these provisions only if the court finds the action was frivolous, unreasonable, or totally without foundation when initiated or that the plaintiff continued to litigate after it clearly became so.
EXISTING LAW:
- Establishes the Department of Fair Employment and Housing (DFEH) to, among other things, receive and investigate complaints of illegal employment discrimination.
- Provides that it is an unlawful employment practice, for an employer, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to, among other things, discharge, harass, or discriminate against the person.
- Provides that it is an unlawful employment practice, for an employee, because of any of the above characteristics, to harass another person, if the employer, or its agents or supervisors, knows or should have known of this conduct and failed to take immediate and appropriate corrective action.
- Extends liability to employers for the acts of nonemployees with respect to sexual harassment if the employer, or its agents or supervisors, knows or should have known of the conduct and failed to take immediate and appropriate corrective action.
- Requires employers to take all reasonable steps necessary to prevent harassment from occurring.
- Defines employer as a person employing 5 or more employees, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, with specified exceptions.
- Requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of assuming their position and once every 2 years thereafter.
- Authorizes the courts in specified circumstances to award the prevailing party in a civil action reasonable attorney’s fees and costs, including expert witness fees.
FISCAL EFFECT: According to the Senate Appropriations Committee, the Department of Fair Employment and Housing (DFEH) would incur absorbable costs related to promulgating regulations and staff training (General Fund). Potential workload impacts to DFEH would be driven by changes in future complaints requiring investigation, which are unknown. Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of sexual harassment prevention training to nonsupervisory employees (General Fund and special funds).
COMMENTS: Note: This bill is double referred to Assembly Judiciary Committee upon passage from this Committee.
The legal standard for workplace harassment
A major component of this bill, as well as its declarations, addresses the legal standard for harassment in the workplace. Courts have struggled with the question of what constitutes merely bad or offensive behavior versus harassing behavior. The controlling case on this issue, Miller v. Department of Corrections (2005)[1], holds that the elements necessary to prove harassment are: 1) the conduct was unwelcome; 2) it was on a discriminatory basis; and 3) it rose to a level of “severe and pervasive.”
This bill focuses on the third element of a harassment claim, namely, the definition of “severe and pervasive” conduct. The Miller court reasoned that harassing behavior becomes severe and pervasive when it alters “the conditions of employment and create(s) a work environment that qualifies as hostile or abusive to employees.”[2] In contrast, “occasional, isolated, sporadic or trivial”[3] behavior that is unwelcome and discriminatory does not rise to the level of severe and pervasive. Furthermore, the severe and pervasive test includes looking at the conduct from both a subjective and objective perspective. This means that the plaintiff, as well as a reasonable person, would view the behavior as severe and pervasive. In Ellison v. Brady (1991),[4] the Ninth Circuit Court of Appeals interpreted the objective requirement to mean that the conduct is viewed from the point of view of a reasonable person in the plaintiff’s position. Furthermore, whether conduct rises to a level that is severe and pervasive requires courts to look at the totality of the circumstances. Circumstances to be evaluated include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[5]
This bill declares that the intent of the Legislature is to adopt a different legal standard of severe and pervasive, one that focuses on how the conduct deprives the employee of his or her statutory right to work in a place free of discrimination. Specifically, the bill affirms and adopts the standard set out by Supreme Court Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993),[6] which argued that a sexual harassment plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
The bill also declares that the intent of the Legislature is to reject the “stray remarks doctrine” and rather affirm the California Supreme Court’s decision in Reid v. Google (2010),[7] which found that isolated remarks, if viewed in light of other circumstances, can be evidence of severe and pervasive harassing conduct. In addition, the bill explicitly rejects the notion that workplaces can be held to different standards regarding sexual harassment. Further, SB 1300 declares that harassment cases- often nuanced and complex- are rarely appropriate for disposition on summary judgment.[8]
Need for the bill
According to the author, “beginning in 2017, propelled by movements such as #MeToo and #WeSaidEnough, brave women began coming forward and exposing the prevalence of sexual harassment in the workplace… As a result of the #MeToo movement, a number of powerful perpetrators were subsequently exposed and fired. Yet, as important as it is to hold perpetrators accountable, it has become clear that preventing sexual harassment in the workplace must involve more than that. Enabled by our work culture and stifled by legal challenges, moving toward a harassment-free culture in California will require comprehensive policy and legal reforms that will allow victims to seek justice, know their rights, and speak out about abuse, while effecting meaningful cultural change at work.”
The California Employment Lawyers Association and Equal Rights Advocates, sponsors of the bill, argue that the current legal standard for workplace harassment is inconsistently applied and fails to protect victims of sexual harassment. They contend that SB 1300 “will ensure that courts properly apply the ‘severe and pervasive’ standard in sexual harassment cases by providing clear statutory guidance…The bill would clarify that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment…In addition, the bill will ensure the legal standard for sexual harassment does not vary by type of workplace. In determining whether or not a hostile environment exists, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties.”
In support, the California Labor Federation argues that the bill will strengthen sexual harassment prevention efforts by prohibiting any release of a worker’s claims or rights under FEHA. They state, “some employers are requiring workers to sign various legal documents, as a condition of employment, as a way to silence victims, escape liability, or minimize public scrutiny. SB 1300 will make it an unlawful employment practice for an employer to require an employee to sign a release of a claim or a right under FEHA in exchange for a raise or bonus, or as a condition of employment or continued employment.”
Arguments in opposition
In opposition, a coalition of employers, including the California Chamber of Commerce (CalChamber), argues that the bill “would remove the current legal standing requirement for specific Fair Employment and Housing Act (FEHA) claims and limit the use of non-disparagement agreements and general releases. These provisions will significantly increase litigation against California employers and limit their ability to invest in their workforce. The May 25th amendments do not address these concerns.”
CalChamber further contends that the bill’s definition of “severe and pervasive” conduct constitutes a “radical lowering of the bar (that) would result in a vast increase in litigation over potentially trivial workplace matters that simply do not rise to the level where the courts should be involved. Simply put, ‘there’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn’t happen [.]’ See Trujillo v. N. Cty. Transit Dist., 63 Cal.App.4th 280, 289, (1998). The courts should concern themselves only with real harms to employees- not merely hypothetical disputes that may or may not evolve into actual harassment or discrimination.”
The California Manufacturers and Technology Association, also in opposition, argues that the bystander intervention training requirement is unnecessary and inappropriate. The Association states, “Training employees on how to recognize and report sexual harassment in the workplace is an appropriate responsibility of the employer; training employees to intervene when witnessing harassment or discrimination is not. By mandating this separate and independent education and training requirement in the employment context, SB 1300 essentially imposes a new legal duty and obligation to act on individuals where none currently exists in law. Employees receiving this instruction from their employers will naturally feel a sense of responsibility given the employment relationship. In addition, the specificity of the mandate imposes an expectation among employees that their co-workers will respond when witnessing a situation in the workplace.”
Related and Prior Legislation
SB 1038 (Leyva) 2018 would impose joint and several liability on an employee who retaliates against anyone else for filing a complaint, testifying, assisting in a proceeding or, otherwise opposing harassment and discrimination, among other unlawful employment practices. SB 1038 is currently pending in the Assembly.
SB 1223 (Galgiani) 2018 would direct the California Department of Industrial Relations to develop a harassment and discrimination prevention policy and training standard for use by employers in the construction industry. SB 1223 is currently pending in the Assembly.
SB 1343 (Mitchell) 2018 would, like this bill, expand the reach of workplace sexual harassment prevention training requirements to include all employees (not just supervisory employees) and all workplaces with more than five employees (not just those with more than 50 employees). SB 1343 is currently pending in the Assembly.
AB 1870 (Reyes) 2018 would extend the statute of limitations for filing a claim of harassment, discrimination, or retaliation, among other unfair employment and housing practices, with the California Department of Fair Employment and Housing. AB 1870 is currently pending consideration in the Senate Judiciary Committee.
SB 396 (Lara) Chapter 858, Statutes of 2017 required employers with five or more employees to put up a DFEH poster regarding transgender rights and mandated that employers with 50 or more employees include a component regarding harassment based on gender identity, gender expression, and sexual orientation in their sexual harassment prevention training.
AB 2053 (Gonzalez) Chapter 306, Statutes of 2014 required the inclusion of a component in the two hour training on prevention of abusive conduct.
AB 1825 (Reyes) Chapter 933, Statutes of 2004 mandated that all employers with 50 or more employees conduct two hours of sexual harassment prevention training for all supervisory employees.
SB 76 (Corbett) Chapter 671, Statutes of 2003 provided that employers may be responsible for sexual harassment of their employees, applicants, or independent contractors by non-employees.
REGISTERED SUPPORT / OPPOSITION:
Support
AAUW
Act for Women and Girls
ACLU
AFSCME
CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Employment Lawyers Association (cosponsor)
California Labor Federation
California Teamsters Public Affairs Council
California Women's Law Center
Consumer Attorneys of California
Engineers and Scientists of CA, IFPTE Local 20, AFL-CO
Equal Rights Advocates (cosponsor)
International Longshore and Warehouse Union
Legal Aid at Work
National Council of Jewish Women, California
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
Public Counsel
SAG-AFTRA
SEIU California
The Women’s Foundation of California
UNITE-HERE, AFL-CIO
Utility Workers of America
Voices for Progress
We Said Enough
Opposition
Agricultural Council of California
Associated Builders and Contractors, Inc. – Northern California Chapter
Associated General Contractors
Association of California Water Agencies
Brea Chamber of Commerce
California Ambulance Association
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Chamber of Commerce
California Employment Law Council
California Farm Bureau
California Hotel and Lodging Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
California Trucking Association
Cerritos Regional Chambers of Commerce
Citizens Against Lawsuit Abuse
Civil Justice Association of California
Culver City Chamber of Commerce
Family Business Association of California
Folsom Chamber of Commerce
Fresno Chamber of Commerce
Gateway Chamber Alliance
Greater Bakersfield Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Greater Irvine Chamber of Commerce
Long Beach Area Chamber of Commerce
Murrieta Chamber of Commerce
National Association of Mutual Insurance Companies
National Federation of Independent Business
Official Police Garages of Los Angeles
Orange County Business Council
Palm Desert Area Chamber of Commerce
Personal Insurance Federation of California
Rancho Cordova Chamber of Commerce
Redondo Beach Chamber of Commerce
San Gabriel Valley Economic Partnership
Santa Ana Chamber of Commerce
Santa Maria Valley Chamber of Commerce
South Bay Association of Chambers of Commerce
Southwest California Legislative Council
Western Growers Association
Wildomar Chamber of Commerce
Wine Institute
Analysis Prepared by: Megan Lane / L. & E. /
36 Cal.4th 446, 462. ↑
Ibid. ↑
Lyle v. Warner Brothers Television Productions, 38 Cal. 4th 264, 283 (2006). ↑
924 F.2d 872, 880 (9th Cir. 1991). ↑
Mokler v. County of Orange, 157 Cal.4th 121, 142 (2007). ↑
510 U.S. 17. ↑
50 Cal.4th 512. ↑
In doing so, the Legislature declares its approval of Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009). ↑
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 1300
: 5/25/18
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 4/11/18
AYES: Pan, Jackson, Mitchell, Wieckowski
NOES: Stone
SENATE JUDICIARY COMMITTEE: 5-2, 4/17/18
AYES: Jackson, Hertzberg, Monning, Stern, Wieckowski
NOES: Moorlach, Anderson
SENATE APPROPRIATIONS COMMITTEE: 5-2, 5/25/18
AYES: Lara, Beall, Bradford, Hill, Wiener
NOES: Bates, Nielsen
SOURCE: California Employment Lawyers Association
Equal Rights Advocates
DIGEST:
This bill requires that all employees receive sexual harassment training and education; includes bystander intervention training as a part of the training; and prohibit a release of claims or nondisparagement agreement between employers and employees under specified circumstances.
Existing law:
- Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
- Prohibits, explicitly, an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
- Defines an employer as any person regularly employing 5 or more individuals, directly or indirectly, except a religious association or non-profit. (Government Code §12926)
- Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
- Requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of assuming supervisorial duties and once every 2 years. (Government Code §12950.1)
- Extends liability for sexual harassment education and training to any person who regularly receives the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
- Provides that any person or class claiming to be aggrieved may file a complaint with the Department of Fair Employment and Housing (DFEH), but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed. (Government Code §§12960-12962)
This bill:
- Reduces the employment threshold for harassment training from 50 employees to all employees covered under FEHA (5 or more).
- Expands the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within 6 months of the employee being hired and once every 2 years.
- Requires including bystander intervention training as a part of the sexual harassment training, which would include information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.
- Requires that the sexual harassment training and education also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
- Requires that employers provide information to each employee on how and to whom harassment should be reported and information on how to contact the DFEH to report a violation.
- Provides that, in an action alleging that an employer, labor organization, or other covered entity, failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, it shall suffice for the plaintiff to show that:
- The employer knew that the conduct was unwelcome to the plaintiff;
- The conduct would meet the legal standard for harassment or discrimination if it increased in severity or become pervasive; and
- The defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
- Limits attorney and expert witness fees for a prevailing defendant to cases where the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Prohibits requiring an employee to sign a release of a claim or right under the Fair Employment and Housing Act (FEHA) in exchange for a raise or bonus, or as a condition of employment or continued employment.
- Prohibits requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
- Declares any release of claim or nondisparagement agreement described above to be contrary to public policy and unenforceable.
- Declares the intent of the Legislature and provides guidance to California courts regarding the legal standard for application of laws regarding harassment in California’s workplaces.
Comments
Key Components of SB 1300: Broadly speaking, SB 1300 touches on four areas: the severe or pervasive standard for sexual harassment claims, sexual harassment training and education for employees, disparagement agreements and releases of claims, and burden of proof on plaintiffs when alleging that an employer did not take the necessary steps to prevent harassment and discrimination in the workplace. Each is discussed below.
Severe or Pervasive Standard: As noted in a recent Senate Judiciary Committee backgrounder on California’s legal standard for sexual harassment, titled “Justice for Victims: Re-examining California’s Legal Standard for Sexual Harassment”, case law requires that a plaintiff prove that the sexual harassment that occurs in the workplace must be severe or pervasive enough to alter the conditions of employment due to the plaintiff’s sex. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462) If, on the other hand, the harassment is occasional or trivial, it will not rise to that legal bar. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283) As noted by the same backgrounder, this approach has drawn significant criticism from legal scholars who believe that this places an undue burden on plaintiffs to prove that they are the victim of discrimination.
SB 1300 declares the intent of the Legislature that harassment creates an environment that deprives workers of their statutory right to work in a place free of discrimination, and then cites Justice Ginsburg’s concurrence in Harris v. Forklift Systems (1993), which argued that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
SB 1300 also finds that a single incident of harassment creates a triable issue, striking the 9th Circuit’s opinion in Brooks. SB 1300 also declares that the existence of a hostile work environment is based on the totality of factors, and may include a single discriminatory remark, and, in that regard, affirms the decision in Reid v. Google (2010). However, SB 1300 declares its disapproval of Kelley v. Conco Companies (2011), arguing that all workplaces should be bound by a single legal standard for sexual harassment.
Finally, SB 1300 declares that harassment cases are rarely appropriate for summary judgment and affirms the decision in Nazir v. United Airlines, Inc. (2009).
Sexual Harassment Training and Education: As noted above, SB 1300 reduces the training threshold for employers from 50 employees to a single employee, requiring that all employers must provide the training. Additionally, SB 1300 requires that, as a part of the existing 2 hour training, employees receive bystander intervention training to learn how to respond if they witness harassment or discrimination. As noted in a recent Senate Judiciary Committee informational hearing on developing a harassment-free workplace, bystander intervention training was developed in the 1990s and has been used on college campuses.
Disparagement Agreements and Releases of Claims: SB 1300 prohibits employers from requiring employees to sign a release of claims under FEHA in exchange for a raise or as a condition of employment. Additionally, SB 1300 would prohibit requiring employees to sign nondisparagement agreements that inhibit the ability of an employee to disclose illegal acts in the workplace, including sexual harassment.
Burden of Proof on Plaintiffs: Under existing law, employers are required to take all reasonable steps necessary to prevent discrimination and sexual harassment in the workplace. As was noted above, if an employer fails to meet this affirmative responsibility, he or she can be subject to DFEH enforcement actions or a lawsuit from his or her employees. SB 1300 would provide that an employee who sues his or her employer would need to prove 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 become pervasive; and
- That the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
This language appears to be related to issues surrounding the severe and pervasive standard, as the Senate Judiciary Committee backgrounder cited case law that found that conduct that is not directed at the plaintiff should be considered less severe and that unlawful conduct should “permeate” a workplace.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, DFEH indicates that it would incur absorbable costs related to promulgating regulations and staff training (General Fund). Potential workload impacts to DFEH would be driven by changes in future complaints requiring investigation, which are unknown. Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of sexual harassment prevention training to nonsupervisory employees (General Fund and special funds).
California Employment Lawyers Association (co-source)
Equal Rights Advocates (co-source)
AAUW
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Labor Federation
California Teamsters
Consumer Attorneys
Engineers and Scientists of California, IFPTE Local 20, AFL-CO
International Longshore and Warehouse Union
Legal Aid at Work
National Council of Jewish Women
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
Public Counsel
SAG-AFTRA
UNITE-HERE, AFL-CIO
Utility Workers of America
Voices for Progress
We Said Enough
The Women’s Foundation
OPPOSITION: (Verified 5/25/18)
Agricultural Council of California
Associated Builders and Contractors, Inc. – Northern California Chapter
Associated General Contractors
Association of California Water Agencies
Brea Chamber of Commerce
California Ambulance Association
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Chamber of Commerce
California Employment Law Council
California Hotel and Lodging Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
Citizens Against Lawsuit Abuse
Civil Justice Association of California
Culver City Chamber of Commerce
Family Business Association of California
Folsom Chamber of Commerce
Fresno Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Murrieta Chamber of Commerce
National Federation of Independent Business
Official Police Garages of Los Angeles
Orange County Business Council
Palm Desert Area Chamber of Commerce
Rancho Cordova Chamber of Commerce
San Gabriel Valley Economic Partnership
Santa Maria Valley Chamber of Commerce
Western Growers Association
Wildomar Chamber of Commerce
ARGUMENTS IN SUPPORT: The sponsors of SB 1300, the California Employment Lawyers Association (CELA) and Equal Rights Advocates (ERA), argue the following:
“In recent months, sexual harassment has gained long-overdue attention as a large number of women and men have come forward about their experiences with sexual harassment in the workplace. As we have learned from the many stories that have come to light, our laws have too often failed to protect workers from the kind of
sexual harassment and discrimination that they were designed to prevent. SB 1300 addresses these gaps in the law by proposing several important reforms. Specifically, SB 1300 will:
- Provide statutory guidance on the “severe or pervasive” legal standard for sexual harassment claims, to ensure that the standard is consistently and fairly applied to protect victims of sexual harassment.
- Strengthen the employer’s duty to prevent harassment in the workplace by imposing the duty as soon as the employer knows there is unwelcome conduct that could become severe or pervasive.
- Prohibit employers from forcing workers to release their claims under FEHA in exchange for a raise or bonus, or as a condition of employment or continued employment.
- Ban non-disparagement agreements that deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
- Strengthen sexual harassment training so that all employers covered under FEHA (employers with 5 or more employees) must provide sexual harassment training to all employees, not just supervisory employees. In addition, the sexual harassment training will be required to include exercises to provide bystanders with the skills and confidence to intervene and report misconduct, when appropriate.”
ARGUMENTS IN OPPOSITION: The California Chamber of Commerce opposes SB 1300, arguing:
“FEHA litigation matters are expensive. A 2015 study by insurance provider Hiscox regarding the cost of employee lawsuits under FEHA estimated that the cost for a small- to mid-size employer to defend and settle a single plaintiff discrimination claim was approximately $125,000. Thus, even if FEHA or the courts determine that no violation occurred and the employer did have the recommended preventative measures in place, defending this type of claim is extremely costly to employers.
SB 1300 prohibits the use of a general release in exchange for a raise or bonus, or as a condition of employment or continued employment. However, the terms “raise” or “bonus” are not defined…
Settlement agreements are used often with regards to sexual harassment suits because the victim does not want the facts of the case being made public, so the employee will negotiate with the employer regarding settlement prior to filing a lawsuit. If the employer cannot guarantee that the employee will not disparage the employer after a settlement agreement has been made, the employer will not have the same motivation to settle a case. As the benefit of a settlement agreement for the employer is reduced, the less likely the employer is to settle claims out of court. Therefore, SB 1300 will chill the use of settlement agreements and will drive employers to fight these cases in court instead of utilizing early resolution.”
5/30/18 9:14:28
**** END ****
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 1300 (Jackson) - Unlawful employment practices: discrimination and harassment
Version: April 4, 2018 | Policy Vote: L. & I.R. 4 - 1, JUD. 5 - 2 |
Urgency: No | Mandate: No |
Hearing Date: May 25, 2018 | Consultant: Robert Ingenito |
Bill Summary:
SB 1300 would make a series of changes to the Fair Employment and Housing Act (FEHA) related to discrimination, harassment and retaliation.
*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********
The following information is revised to reflect amendments
adopted by the committee on May 25, 2018
Fiscal Impact:
The Department of Fair Employment and Housing (DFEH) indicates that it would incur absorbable costs related to promulgating regulations and staff training (General Fund). Potential workload impacts to DFEH would be driven by changes in future complaints requiring investigation, which are unknown (See Staff Comments). Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of sexual harassment prevention training to nonsupervisory employees (General Fund and special funds).
Author Amendments:
Require a plaintiff in an action alleging that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring 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.
-- END --
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2017 - 2018 Regular Session
SB 1300 (Jackson) - Unlawful employment practices: discrimination and harassment
Version: April 4, 2018 | Policy Vote: L. & I.R. 4 - 1, JUD. 5 - 2 |
Urgency: No | Mandate: No |
Hearing Date: April 30, 2018 | Consultant: Robert Ingenito |
This bill meets the criteria for referral to the Suspense File
Bill Summary:
SB 1300 would make a series of changes to the Fair Employment and Housing Act (FEHA) related to discrimination, harassment and retaliation.
Fiscal Impact:
The Department of Fair Employment and Housing (DFEH) indicates that it would incur absorbable costs related to promulgating regulations and staff training (General Fund). Potential workload impacts to DFEH would be driven by changes in future complaints requiring investigation, which are unknown (See Staff Comments). Additionally, the bill would result in unknown, but potentially significant additional costs across all state departments, related to the expansion of sexual harassment prevention training to nonsupervisory employees (General Fund and special funds).
Background:
California has required sexual harassment prevention training for supervisors at large employers for over a decade. In 2004, the State mandated that all employers with 50 or more employees conduct at least two hours of sexual harassment prevention training for all supervisory employees within six months of assuming their duties, and once every two years.
In addition to these specific mandates, employers are potentially liable under FEHA if they fail to take all reasonable steps to avoid harassment, discrimination, and retaliation, in their workplaces. Consequently, many employers undertake some form of sexual harassment prevention training for their employees even where it is not explicitly required by current law.
The legal standards that prohibit sexual harassment in workplace and other contexts originated over 30 years ago. They emerged from anti-discrimination laws that date back further still. However, sexual harassment is still a pervasive issue.
Proposed Law:
This bill would, among other things, do the following:
- Reduce the employment threshold for harassment training from 50 employees to all employees covered under FEHA.
- Expand the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within 6 months of the employee being hired and once every two years.
- Require including bystander intervention training as a part of the sexual harassment training, as specified.
- Require that employers provide information to each employee on how and to whom harassment should be reported and information on how to contact the DFEH to report a violation.
- Provide that, in an action alleging that an employer, labor organization, or other covered entity, failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, the plaintiff does not need to prove that he or she endured sexual harassment or discrimination.
- Provide that, in an action described above, it shall 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 become pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
- Limit attorney and expert witness fees for a prevailing defendant to cases where the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Prohibit requiring 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.
- Declare any release of claim or nondisparagement agreement described above to be contrary to public policy and unenforceable.
Related Legislation:
- SB 1343 (Mitchell, 2018) would, like this bill, expand workplace sexual harassment prevention training requirements to include all employees (not just supervisory employees) and all workplaces with more than five employees (not just those with more than 50 employees). In addition, and unlike this bill, SB 1343 would direct DFEH to develop a two-hour video training course on workplace sexual harassment prevention, to be hosted on its Web site and made available to all California employers. Finally, and unlike this bill, SB 1343 would require DFEH to make its workplace sexual harassment materials available in specified alternative languages. The bill is currently pending in this Committee.
- AB 1825 (Reyes, Chapter 933, Statutes of 2004) created the sexual harassment education and training requirement for employers with 50 or more employees.
Staff Comments:
As noted above, in addition to the absorbable costs related to regulations and training, the bill could potentially lead to workload impacts related to DFEH investigations resulting from the number of complaints it receives. Under the bill, more employees would be better trained with respect to sexual harassment prevention and DFEH’s role in the process. Some of these employees with a subsequently improved understanding of their rights could file complaints, which would drive up DFEH’s investigatory workload relative to what is otherwise would have been. On the other hand, because more employees would have received prevention training, there would be a greater understanding of what constitutes harassing behavior, resulting in less sexual harassment, and fewer cases for DFEH to investigate. The extent to which one of these factors would overwhelm the other is uncertain, but would determine the magnitude and direction of any change in DFEH’s investigatory workload.
Also as noted above, the bill would require all employers to provide sexual harassment training, and to provide that training to all employees, not just supervisorial employees. Additionally, the training also would include a bystander intervention training component, yet maintains a two-hour timeframe for the entire training. The California Department of Human Resources would likely incur costs to develop this additional training component and fold it into the curriculum of the existing two-hour training course. All state departments would likewise incur costs to modify their training programs as necessary, and deliver them to all employees as opposed to supervisorial staff only. The related costs are unknown, but potentially significant.
-- END --
Senator Hannah-Beth Jackson, Chair
2017-2018 Regular Session
Bill No: SB 1300 (Author:Jackson)
Version: April 4, 2018
Hearing Date: April 17, 2018
Fiscal: Yes
Urgency: No
Consultant: TSG
SUBJECT
Unlawful employment practices: discrimination and harassment
DESCRIPTION
This bill would make a series of changes to the Fair Employment and Housing Act designed to strengthen that statute’s deterrent effect against discrimination, harassment and retaliation. Specifically, the bill would: (1) provide guidance to the courts on application of the legal standard for unlawful harassment; (2) make employers liable if they fail to take all reasonable steps to try to stop unwelcome, potentially harassing conduct from becoming so severe and pervasive as to meet the legal definition of harassment; (3) establish that employers may be held liable for unlawful harassment that their employees endure, based on any protected characteristic, at the hands of third-party non-employees, if the employer knows of the harassment, has the requisite control over the situation, and fails to correct it; (4) restrict the use of contractual provisions that require workers to waive their civil rights as a condition of employment or continued employment; (5) prevent the preemptive use of contractual non-disparagement clauses, at the time of hire or as a condition of continued employment, to deny employees the right to disclose information about unlawful acts in the workplace, including sexual harassment; (6) expand the scope and content of workplace sexual harassment prevention training; and (7) clarify that people seeking to enforce their civil rights in good faith, including the right to be free from sexual harassment, should not be deterred by the concern that they may be forced to pay attorneys’ fees.
BACKGROUND
The legal standards that prohibit sexual harassment in workplace, business, professional, service, and other contexts originated over 30 years ago. They emerged from anti-discrimination laws that date back even further. Yet, as the events of 2017 have made abundantly clear, sexual harassment remains commonplace. Victims still suffer life-altering professional, psychological, and economic impacts. To try to avoid becoming victims, women must still remain constantly vigilant and still often choose to alter their own conduct and forgo opportunities in order to stay safe. In this way, sexual harassment continues to systematically undermine the ability of women and other vulnerable groups to thrive professionally, economically, and emotionally, on an equal basis with all others.
In response, this Committee and other state Legislative bodies have conducted numerous hearings, consulted with experts, and listened to public commentary with the goal of identifying legal reforms that would help to ensure a serious and lasting end to the scourge of harassment.
These public inquiries and conversations have revealed that a series of legal and policy shortcomings have enabled and, in some cases, have even facilitated harassment. Those shortcomings include: overly permissive tolerance for legal tactics that silence victims; insufficient and ineffective sexual harassment prevention training requirements; failure on the part of some judges to fully account for the power of sexual harassment to undermine the civil rights of its victims; and standards for liability that force victims to endure unwelcome conduct to the point where it becomes severe or pervasive before they are entitled to any remedy.
Sexual harassment is the result of many factors operating together. No one change in the law is likely to disrupt the persistence of harassment. Accordingly, this bill takes a multi-pronged approach. It would make a number of modifications to the Fair Employment and Housing Act, each intended to address a different identified shortcoming in the existing law. The Comments to this analysis, below, detail these modifications and the corresponding problems they are intended to address, one by one. Taken as a whole, however, these reforms may be characterized as closing loopholes in existing harassment law, strengthening sexual harassment prevention training requirements, and cracking down on the use of contractual provisions which prevent victims from speaking out and shield serial harassers against accountability.
CHANGES TO EXISTING LAW
- Existing law provides that an employer may be liable for workplace sexual harassment of an employee, applicant, unpaid intern or volunteer, or person providing services pursuant to a contract, by a non-employee, if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action. (Gov. Code Sec. 12940(j)(1).)
This bill would provide that employers may also be liable for harassment by a non-employee that is based on the victims’ race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.
- Existing law makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Gov. Code Sec. 12940(k).)
Existing law holds that, as a precondition for prevailing on a cause of action for failure to take all reasonable steps to prevent discrimination and harassment from occurring, a plaintiff must first show that the alleged conduct was sufficiently severe or pervasive to meet the legal definitions of discrimination or harassment. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314; (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.))
This bill would specify that a plaintiff in an action alleging failure to take all reasonable steps to prevent discrimination and harassment is not required to prove that the plaintiff endured conduct that meets the legal standard for harassment or discrimination. Instead, it would suffice for the plaintiff to show that the employer knew that the conduct was unwelcome to the plaintiff, that if the conduct increased in severity or became pervasive it would meet the legal standard for harassment or discrimination, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
3. Existing law defines harassment as discriminatory conduct unwelcome to the plaintiff that is sufficiently severe or pervasive as to create a hostile, abusive environment and interfere with the terms and conditions of employment. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)
This bill would express the Legislature’s intent regarding the application of the legal standard for sexual harassment. Specifically, it would:
- state that the purpose behind the laws against harassment is to provide all Californians with an equal opportunity to succeed in the workplace and that anti-harassment laws should be applied accordingly;
- declare that harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination when the harassing conduct sufficiently offends, humiliates, distresses or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being;
- provide that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment;
- affirm that courts should examine the totality of the circumstances when weighing whether or not a hostile environment existed, without disregarding any potential evidence on the grounds that it is merely a stray remark uttered by someone without decision-making authority;
- specify that the legal standard for sexual harassment should not vary by type of workplace; that it is irrelevant whether a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past; and that in determining whether or not a hostile environment existed, courts should only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties; and
- indicate that harassment cases are seldom appropriate for disposition on summary judgment.
4. Existing law obligates public and private sector employers with 50 or more employees or using the services of 50 or more independent contractors, to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position and once every two years. (Gov. Code Sec. 12950.1(a).)
Existing law mandates the required education and training must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation, and must include:
- information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment;
- practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation;
- a component on the prevention of “abusive conduct,” defined as conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests; and
- a component inclusive of harassment based on gender identity, gender expression, and sexual orientation. (Gov. Code Sec. 12950.1(a-c).)
This bill would obligate covered employers to provide the required training to all employees.
This bill would expand the scope of employers subject to the requirement to provide sexual harassment prevention training from all employers with 50 or more employees or independent contractors, to all employers with five or more employees.
This bill would require covered employers, as part of the required two hour education and training, to:
- include bystander intervention training with information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors;
- include exercises to provide bystanders with the skills and confidence to intervene as appropriate and would have to provide bystanders with resources they can call upon that support their intervention; and
- provide information to each employee on how and to whom harassment should be reported as well how to contact the California Department of Fair Employment and Housing to make a complaint regarding a violation of workplace sexual harassment education and training requirements.
5. Existing law, in the context of contractual obligations, provides that all of the following are unlawful: that which is contrary to an express provision of law; that which is contrary to the policy of express law, though not expressly prohibited; or that which is otherwise contrary to good morals. (Civ. Code Sec. 1667.)
Existing law makes unlawful all contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent. (Civ. Code Sec. 1667.)
Existing law gives discretion to the courts to refuse to enforce any contract or clause of a contract if the court determines, after affording a reasonable opportunity to the parties to present the contract’s commercial setting, purpose and effect, that the contract or clause of the contract was unconscionable as a matter of law at the time it was made. (Civ. Code Sec. 1670.5.)
This bill would make it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to do either of the following:
- require an individual to sign a release of a claim or right under the Fair Employment and Housing Act, including a statement that the individual does not possess any claim or injury against the employer or other covered entity, and including a release of a right to file or pursue a civil action or complaint with, or otherwise notify, a state agency, other public prosecutor, law enforcement agency, or any court or other governmental entity; or
- require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, information pertaining to sexual harassment or any other unlawful or potentially unlawful conduct.
6. Existing law gives courts the discretion to award reasonable attorneys’ fees and costs, including expert witness fees, to a plaintiff who prevails on a claim for workplace discrimination, harassment, or retaliation, among other civil rights violations under the Fair Employment and Housing Act. (Gov. Code Sec. 12965(b).)
Existing law provides that if, during the course of litigation, one party makes a settlement offer, that offer is refused, and the recipient of the offer then fails to obtain a better result at trial, then the party that made the settlement offer is entitled to an award of all attorneys’ fees and costs incurred from the time the settlement offer was rejected. (Code Civ. Proc. Sec. 998.)
Existing law is unsettled as to whether a plaintiff who rejects a settlement offer in an action alleging workplace discrimination, harassment, or retaliation, may be subject to paying the subsequently incurred attorneys’ fees and costs of the defendant if the plaintiff does not obtain a result that is more favorable than the settlement offer was. (Compare Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, to Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., (4th Dist., Div. 2 Jan. 2, 2018) Case No. E061677.)
This bill would clarify that a prevailing defendant shall not be awarded attorneys’ fees and costs in an action under the Fair Employment and Housing Act, irrespective of the rejection of any offers of settlement, unless the court finds the action was frivolous, unreasonable, or totally without foundation when brought, or that the plaintiff continued to litigate after the action clearly became so.
COMMENT
1. Stated need for the bill
According to the author:
Beginning in 2017, propelled by movements such as #MeToo and #WeSaidEnough, brave women began coming forward and exposing the prevalence of sexual harassment in the workplace. Along with showcasing how common sexual harassment is across industries and the harm it afflicts on victims’ emotional well-being, their careers and earnings, these stories shed light on the complex legal and cultural factors that enable sexual harassment to occur unchallenged in the workplace.
As a result of these movements, a number of powerful perpetrators were subsequently exposed and fired. Yet as important as it is to hold perpetrators accountable, it has become clear that preventing sexual harassment in the workplace must involve more than that. Enabled by our work cultures and our legal environment, moving toward a harassment-free culture in California will require a host of meaningful policy and legal reforms that allow victims to seek justice, know their rights, and speak out about abuse.
SB 1300 seeks to comprehensively address harassment in the workplace by prohibiting legal tactics that prevent victims from speaking out about abuse and seeking justice; strengthening sexual harassment training; holding employers accountable to their duty to prevent harassment; and providing guidance to the courts to ensure that the “severe or pervasive” legal standard is fairly applied to protect victims.
As sponsors of the bill, the California Employment Lawyers’ Association and Equal Rights Advocates jointly write:
In recent months, sexual harassment has gained long-overdue attention as a large number of women (and some men) have come forward about their experiences with sexual harassment in the workplace. As we have learned from the many stories that have come to light, our laws have too often failed to protect workers from the kind of sexual harassment and discrimination that they were designed to prevent. […]
Our lawyers have found that there are significant gaps in the FEHA that have denied justice to victims of sexual harassment, that have allowed sexual perpetrators to evade its reaches, and that have generally allowed sexual harassment in the workplace to persist. SB 1300 addresses these gaps in the law by proposing several important reforms. […]
With this kind of strengthened training on sexual harassment prevention, intervention, and reporting, we can help eradicate sexual harassment and create healthier and safer places to work.
SB 1300 takes a comprehensive approach to addressing sexual harassment and provides a framework for strengthening our existing laws and training requirements, and ensuring that these rights cannot be contracted away by deceptive legal agreements.
In support of the bill, the American Civil Liberties Union of California writes:
SB 1300… addresses the pervasive problem of sexual harassment by holding employers accountable, giving employees better tools to speak out about abuse, and providing courts with clarity in cases of “severe or pervasive” work-related harassment. Many of these important legal changes will help not only those who experience sexual harassment but also people who experience other forms of bias-based harassment and discrimination in the workplace as well.
2. Concerns expressed about the bill
In opposition to the bill, the California Chamber of Commerce and 35 affiliated organizations write:
[SB 1300] would remove the legal standing requirement for specific Fair Employment and Housing claims and limits the use of nondisparagement agreements and general releases, these provisions will significantly increase litigation against California employers and limit their ability to invest in their workforce.
These and other concerns raised by opponents of this bill are detailed in the corresponding Comments on the bill, below.
3. The legal standard for workplace harassment
Although, colloquially, the term “harassment” is frequently used to describe a wide range of unwelcome behavior, in the legal sense, “harassment” has a far narrower and more precise definition. In other words, despite the common misconception that people can successfully sue others for any sort of behavior that the target perceives to be harassing, in fact people can only successfully sue for very specific and relatively extreme forms of behavior that meet the legal standard of harassment.
Currently, that legal standard may be summarized as follows: to prevail on a harassment claim, the plaintiff must show that the conduct was unwelcome, discriminatory, and reached the level of becoming “severe or pervasive.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.)
That the conduct must be unwelcome means that the victim did not solicit or incite the conduct and that the conduct was undesirable or offensive to the victim. (EEOC v. Prospect Airport Servs., Inc. (9th Cir 2010) 621 F3d 991, 997.) For legal purposes, conduct may be unwelcome even if the harasser does not know or intend it to be so; whether or not conduct is unwelcome is judged subjectively from the point of view of the victim. (Ellison v. Brady (9th Cir 1991) 924 F2d 872, 880.)
To constitute harassment in the legal sense, the unwelcome conduct must also be discriminatory. That the conduct must be discriminatory means that it must have treated the victim differently on account of the victim’s race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. (Gov. Code Sec. 12940(j)(1).) This nexus requirement means that ridiculing, teasing, or abusive comments are not harassment in the legal sense unless they are made on account of one of the restricted bases. Thus, it is not potential harassment, legally speaking, if you demean other people for the sports teams they like, for their taste in music, for being a hippie, or for how often they play golf, but it is potentially harassment, legally speaking, if you ridicule others because they are female, or gay, or HIV positive, or because they served in Iraq or Afghanistan.
Conduct that is both unwelcome to the victim and discriminatory is well on its way to being harassment in the legal sense, but it is not there yet. There is an important, final, legal ingredient. To constitute harassment in the legal sense, the conduct must be unwelcome and discriminatory, and it must reach the point of becoming “severe or pervasive,” meaning that it must “alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees.” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462.) Discriminatory, unwelcome conduct that is, by contrast, only “occasional, isolated, sporadic, or trivial” generally fails to meet this standard. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) The test is both subjective and objective; that is, the plaintiff must experience the discriminatory conduct as severe or pervasive and a reasonable person would also have to find it to be that way. In California, the objective element must be evaluated from the point of view of a reasonable person in the plaintiff’s position. (Ellison v. Brady, supra, 924 F.2d 872, 878.) In the context of sexual harassment, this is sometimes referred to as “the reasonable woman” standard, given that the majority of sexual harassment plaintiffs are female.
Whether the conduct meets the “severe or pervasive” threshold must be evaluated in light of the totality of the circumstances. Factors that the adjudicator should take under consideration include: “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” (Mokler v. County of Orange (2007) 157 Cal.4th 121, 142.) In the case of sexual harassment, the unwelcome conduct does not have to be motivated by sexual desire to rise to the level of being legally actionable (Gov. Code Sec. 12940(j)(4)(C)), and it may be directed at a member of the same sex. (Lewis v. City of Benicia (2014) 224 Cal.App.4th 1519.) The plaintiff does not have to have been the target of the harassment, but adjudicators are supposed to discount conduct that “involves or is aimed at persons other than the plaintiff” as less offensive and severe than conduct targeted at the plaintiff. (Lyle v. Warner Brothers Television Productions, supra, 38 Cal.4th at pp. 284–285.) Courts have ruled that discriminatory conduct that is not directed at any one person must “permeate” the plaintiff’s environment to be actionable as harassment. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)
4. Providing guidance to the courts on the application of the “severe or pervasive” standard
On January 11, 2018, this Committee, in collaboration with Senate Select Committee on Women, Work, and Families, held an informational hearing to review this legal standard and evaluate whether any modifications are needed to reduce incidents of harassment and better ensure genuine equality of opportunity. While witnesses at the hearing expressed differing opinions, a general point of consensus was that if changes are needed, those changes relate more to application of the legal standard, rather than to the standard itself. With that in mind, this bill would provide the following guidance to the courts with regard to application of the legal standard for sexual harassment in California:
- Restoring the focus on the civil rights underpinnings of anti-harassment laws
Nearly all of the legal doctrines for adjudicating harassment cases trace their origins to a 1986 U.S. Supreme Court case, Meritor Savings Bank, FSB v. Vinson (477 US 57). In that case, the court declared for the first time that harassment in the workplace is a form of discrimination and therefore unlawful under Title VII of the Civil Rights Act of 1964. Subsequently, most other courts, state and federal, have looked to Meritor and its progeny when evaluating harassment claims brought under anti-discrimination laws.
The focus of Title VII is assuring equal opportunity regardless of race, color, religion, sex, or national origin. (42 U.S.C. 2000e-2(a).) The way that the “severe or pervasive” standard for harassment has been applied in practice can be criticized as straying from both the text and the intent of those laws, however. Perhaps misled by the nature of the phrase “severe or pervasive,” courts have too often concentrated on the tort-like question “was the situation really that bad?” when, from the civil rights perspective, the key inquiry is “did the situation undermine equal opportunity?”
This bill would remind the courts of the civil rights origins of harassment law and encourage them to apply that law with an eye toward ensuring that harassment does not deprive Californians of an equal opportunity to succeed.
- Affirming that a single incident may constitute harassment if sufficiently severe
California courts have held that a single, severe incident of unwelcome, discriminatory conduct may meet the legal definition of harassment, especially if committed by a supervisor. (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 36.) When it comes to co-workers, however, some judges have been reluctant to find that harassment occurred when the claim is based on a single incident.
One case, in particular, seems to have set an especially high bar for such harassment claims. In Brooks v. City of San Mateo (9th Cir 2000) 229 F3d 917, a three judge panel led by Judge Kozinksi ruled that the plaintiff, a 911 dispatcher, did not have a claim for sexual harassment even though she had been physically assaulted by a co-worker. The court contrasted what the dispatcher endured against another case involving violent overnight confinement and rape. By comparison, the court concluded, the dispatcher “was harassed on a single occasion for a matter of minutes in a way that did not impair her ability to do her job in the long-term.” The sponsors of SB 1300 assert that the legacy of this case has been a de facto “one free grope rule” under which even physical assault of a victim is not considered sufficiently severe to support a finding of sexual harassment.
This bill would explicitly reject the holding in Brooks, by affirming that a single incident can be sufficient to support a claim of sexual harassment, and would implicitly disavow the “one free grope rule.”
- Rejection of the “stray remarks” doctrine; affirmation of totality of the circumstances
As described above, the general rule is that whether unwelcome, discriminatory conduct rises to the level of unlawful harassment depends on the totality of the circumstances. (Mokler v. County of Orange (2007) 157 Cal.4th 121, 142.) Nonetheless, the federal courts have carved out of the totality of the circumstances any consideration of remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process, under the so-called “stray remarks doctrine.” Such remarks, these courts have ruled, are irrelevant.
In Reid v. Google, Inc. (2010) 50 Cal.4th 512, the California Supreme Court addressed whether or not California should follow the federal courts’ lead in applying the “stray remarks doctrine.” The Court recognized that while stray remarks, viewed in isolation, might not have strong probative value, “they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence.” (Id., at 541.)
This bill would affirm the Court’s decision in Reid and reinforce its guidance to the courts to consider stray remarks as one aspect of the totality of the circumstances on which a claim of harassment is appropriately judged.
- Rejection of “different job, different justice” concept
Harassment stands as a barrier to equal opportunity. When courts condone unwelcome, discriminatory conduct on the grounds that things have always been that way in a certain industry, they perpetuate the lack of equal opportunity in that industry.
In general, the courts seem to apply the standard for harassment even-handedly across job types. In a few cases, however, there is evidence that courts have allowed consideration of typical jobsite circumstances to influence their assessment of whether particular conduct constitutes unlawful harassment. In Kelley v. Conco (2011) 196 Cal.App.4th 191, for instance, the court dismissed an ironworker’s claim of sexual harassment, finding that he had not alleged facts sufficient to show that the conduct he endured was “severe or pervasive.” In the course of reaching that conclusion, the court remarked that: “in the environment in which this incident took place, sexually taunting comments by supervisors and employees were commonplace, including gay innuendo, profanity, and rude, crude and insulting behavior. Such comments were made both jokingly and in anger.” (Id. at 205.) In effect, the court seemed to suggest that the ironworker had not suffered harassment and discrimination because harassment and discrimination were just part of the job environment; part and parcel of what it meant to be an ironworker at this jobsite.
This bill would reject that part of the reasoning and language in Kelley that appears to dismiss the harms of harassment and discrimination simply because such harassment and discrimination are commonplace in that jobsite environment. Instead, it would advise the courts that the legal standard for harassment should not, ordinarily, vary by workplace.
At the same time, the bill acknowledges that there are some jobs in which engaging in or witnessing prurient conduct and commentary is necessarily part and parcel of the job. In Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, for example, a woman brought a claim for sexual harassment after being exposed to highly sexualized behavior and commentary while working in the writing room for the sitcom “Friends.” A unanimous California Supreme Court rejected the woman’s assertion that she endured sexual harassment. In doing so, the Court emphasized the fact that the jobsite was “a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes.” (Id. at 272.) The bill makes room for such unique circumstances, while still admonishing courts to ensure that the sexualized conduct or commentary is truly integral to the job duties, rather than merely being “the way it is around here.”
- Discouragement of disposition of workplace harassment claims on summary judgment
Before any civil legal dispute proceeds to trial, any party may make a motion for summary judgment. When brought by a defendant, such a motion argues, in essence, that even viewing the facts of the case in the light most favorable to the plaintiff, the plaintiff still cannot prevail. When brought by a plaintiff, a summary judgment motion asserts that, even viewing the facts of the case in the light most favorable to the defendant, the defendant still cannot prevail. (Code of Civ. Proc. Sec. 437c(a)(1).) Either way, a motion for summary judgment asks the judge assigned to the case to declare a winner before any trial takes place.
In the context of workplace harassment lawsuits, defendants often seek summary judgment on the ground that, even if everything that the plaintiff alleges is true, what happened may have been difficult, unpleasant, or even offensive, but it was not sufficiently “severe or pervasive” to constitute unlawful harassment. As discussed in Comment 3, whether or not any set of facts reaches the point of being “severe or pervasive” must be determined in light of the totality of the circumstances as viewed from the perspective of a reasonable person in the plaintiff’s position. On summary judgment, this requires judges to put themselves in the shoes of the plaintiff, step into the circumstances the plaintiff faced, and try to decide how a reasonable plaintiff would have perceived things.
To complicate the task, at the summary judgment stage of a case, all the judge has to work with to assess the totality of the circumstances are “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc. Sec. 437c(b)(1)) – in other words, a lot of papers, with an occasional video deposition thrown in. The judge has to evaluate all the nuance and context that comprise “the totality of the circumstances” based on a limited universe of material and without the benefit of meeting or asking any questions of any of the people involved.
This would be a difficult task for any individual, but the economic and demographic gulf between most victims of harassment and most judges makes it even more challenging. All judges have a form of tenure – they cannot be fired from their jobs and denied the associated benefits arbitrarily. (Cal. Const., Art. VI, Secs. 8, 18, 18.1 and 18.5.) By contrast, many if not most Californians work as “at-will” employees, meaning they can be fired at any time for any lawful reason, including for no reason at all. (Lab. Code Sec. 2922.) The vast majority of victims of sexual harassment are women. [1] By contrast, most California judges are men. The vast majority of victims of racial harassment are people of color. By contrast, the California bench is mostly white. The vast majority of victims of homophobic harassment identify as lesbian or gay. The overwhelming majority of California judges identify as straight. [2]
This bill would note the tremendous difficulty inherent in ruling on a summary judgment motion in the context of workplace harassment lawsuits. With that in mind, it would state the view of the Legislature that such cases are rarely appropriate for disposition on summary judgment. Two additional points are implied: first, that a fact-finder informed by live testimony and exposed to all of the nuances of a case will be better situated to assess the totality of the circumstances than a fact finder informed only by affidavits, declarations, deposition transcripts and discovery; and second, that a jury of peers, composed of a diverse cross-section of the community, will be better able to appraise how a reasonable person in the plaintiff’s position would have perceived the totality of the circumstances than any single individual, no matter how legally adept.
5. Intervening early to stop unwelcome conduct before it becomes severe or pervasive
Existing law requires employers “to take all reasonable steps necessary to prevent discrimination from occurring.” (Gov. Code Sec. 12940(k).) The courts have ruled, however, that in order to prevail on a claim under this section, the plaintiff must show, first, that unlawful discrimination or harassment took place. (Dickson v. Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1314; (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289.) This somewhat circular logic – that the duty to prevent harassment or discrimination only arises once it has occurred – renders subdivision (k) largely an “add-on” cause of action; something that plaintiffs can only win if they have already prevailed on the harassment or discrimination claim. It also means that there is no consequence for employers who are aware of unwelcome, potentially harassing conduct in the workplace, but who nonetheless sit on their hands and do little or nothing about it. In other words, under current law, the legal duty to prevent harassment arises too late to be of any actual help to victims.
Imagine if, for instance, Eddie Employee shows pornographic images to Wendy Worker and Wendy Worker reports this behavior to Sammy Supervisor. Wendy tells Sammy that the behavior was unwelcome to her. Under existing law, there is no legal consequence if Sammy does nothing in response, unless Eddie continues to bombard Wendy with these images to the point that it becomes severe or pervasive. Most employers would want Sammy Supervisor to take responsive action immediately upon first hearing Wendy’s report because of the concern that if the behavior escalates, the employer could then become liable. Many employer policy manuals and supervisor trainings will reflect this preferred response. Yet under existing law, Sammy Supervisor has no legal duty to take any action in response to Wendy’s initial complaint. That leaves Wendy Worker with only one legal option in the face of an employer who is not taking action in response to her complaints about unwelcome conduct: endure the behavior until it becomes severe or pervasive.
This bill would, instead, make it so that plaintiffs need not prove that the unwelcome conduct reached the point of being severe or pervasive – thus constituting harassment in legal terms – in order to prevail on a claim that the employer did not take reasonable steps to prevent harassment or discrimination from taking place. In essence, this would impose a legal duty on employers to take action in response to reports of unwelcome conduct in the workplace. In other words, it moves up the moment that employers must take action to a time when that action could still be effective to prevent unwelcome conduct from escalating into harassment.
To ensure that employers do not have to take dramatic action in response to minor issues, the bill would require only that the responsive steps be reasonable. Thus, in the example above for instance, a brief conversation with Eddie asking him not to show pornographic images to other employees, or an email to all employees reminding them of the office policy against viewing pornographic images at work would probably be sufficient.
Similarly, to ensure that employers would not be liable for failing to take action against complaints of commonplace “unwelcome conduct,” such as chewing gum with your mouth open, or talking loudly at the water cooler, the bill would only require employers to respond to reports of conduct which, if it escalated in severity or pervasiveness, would constitute unlawful harassment.
In opposition to this aspect of SB 1300 -- the imposition of a legal duty on employers to take reasonable action to prevent unwelcome, discriminatory conduct from escalating – the California Chamber of Commerce and organizations affiliated with it advance two primary concerns.
First, they assert that this component of SB 1300 lacks a standing requirement. In other words, they say, absolutely anyone could sue the employer for failure to take action to prevent unwelcome, discriminatory behavior from escalating into full blown harassment in the legal sense. As introduced, the bill was certainly susceptible to such an interpretation, but subsequent amendments clarify that an employer’s duty to take reasonable action would be triggered only by knowledge of discriminatory conduct that is unwelcome “to the plaintiff.” This language appears to tie the cause of action firmly to a party who was actually aggrieved by the employer’s failure to act, though it may be possible to make the standing requirement even clearer.
Second, the group led by the Chamber of Commerce states that this component of SB 1300 creates a “private right of action for failure to prevent sexual harassment and discrimination.” In as much as SB 1300 would give employers the legal duty to take reasonable action to stop unwelcome, discriminatory behavior from escalating into full blown harassment in the legal sense, SB 1300 does create a cause of action if the employer does not take reasonable action in such a situation. For instance, an employer could be subject to liability for doing nothing in response to a report from an employee that her co-worker keeps touching her inappropriately and she would like it to stop. So long as the employer takes reasonable steps to prevent the co-worker from doing it again, however, no liability would arise.
The Chamber-led group points out that under FEHA regulations, “whether an employer did or did not properly prevent harassment or discrimination requires an ‘individualized assessment, depending upon numerous factors sometimes unique to the particular employer including, but not limited to, its workforce size, budget, and nature of its business, as well as upon the facts of a particular case.’” With that in mind, figuring out what would be “reasonable” for an employer to do when confronted by a situation that could morph into harassment is “extremely fact specific and not clearly defined.” With that in mind, the Chamber-led group believes “this determination should not be left to a member of the public” and “should remain with DFEH.”
While SB 1300 does not remove anything from DFEH’s jurisdiction, it is true that determining what is “reasonable” in any given scenario can be challenging. Yet it is also fair to say that our legal system frequently entrusts the public with deciding what is “reasonable.” Indeed, that trust is one of the cornerstones of our legal system. We ask the public, in the form of a jury of our peers, to determine our fate and, where matters require specialized knowledge, that is the function of an expert witness.
Still, the Chamber-led group urges that the imposition of liability should never be taken lightly, given what it asserts are high associated costs. Then again, it can be argued that there is a large cost to employees, employers, and society at large to the ongoing prevalence of harassment in the workplace. [3] For example, a study of just the U.S. Army estimated its annual costs associated with sexual harassment were $250,000,000.[4] It may be that further incentivizing early intervention would result in less harassment and, correspondingly, a drop in liability.
6. Prohibiting all forms of harassment by third party entities
Workers are generally protected against unlawful harassment in the workplace. (Gov. Code Sec. 12940(j).) Not just any unwelcome, severe or pervasive behavior is unlawful, however. As detailed in Comment 3, above, unlawful harassment is unwelcome, severe or pervasive conduct perpetrated on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Thus, severe or pervasive ridicule of an employee because they are a New York Yankee fan (while entirely justified) may be harassment in the colloquial sense, but it is not unlawful harassment in the legal sense. Harassment of an employee because they are HIV positive, by contrast, is unlawful harassment, because the harassment has a nexus to a medical condition.
In 2003, the Legislature enacted AB 76 (Corbett, Ch. 671, Stats. 2003), which made it clear that employers may also be responsible for unlawful harassment of its employees, applicants, or independent contractors by non-employee third parties.
The bill was a response to the 2002 case Salazar v. Diversified Paratransit, Inc., 103 Cal.App.4th 131. In that case, a passenger repeatedly got out of his seat, exposed himself to the driver, leered at her, and grabbed at her. Although the passenger’s behavior was known to the employer through past incidents and the driver’s complaints, the employer kept the driver on the same route. Eventually, the passenger sexually assaulted the driver. Ruling on the question of whether the employer could be held liable for sexual harassment, the Salazar court said no, because at the time, the Fair Employment and Housing Act did not provide for liability for harassment perpetuated by non-employee third parties. AB 76 addressed that omission.
Somewhat inexplicably, however, AB 76 was limited, as the result of a last minute amendment to the bill, to sexual harassment only. (Sen. Amend. to Assem. Bill No. 76 (2003-2004 Reg. Sess.) Aug. 28, 2003.) As a result, an employer can be held liable under current law if it knows about sexual harassment by a non-employee and does nothing about it, but not if the harassment is based on any of the other categories – race, religious creed, sexual orientation, medical condition, disability, or military status, among others -- that define unlawful harassment by others. Thus, for instance, under current law, an employer could be held liable if it knows and does nothing about a delivery person who makes crude sexual remarks to the receptionist while walking through the lobby every day, but the employer could not be held liable if, instead, the delivery person made racist remarks.
SB 1300 would fix this incongruity in the law.
7. Expanding and strengthening sexual harassment prevention training
In the context of large employers, California has had sexual harassment prevention training requirements on the books for over a decade. In 2004, California enacted AB 1825 (AB 1825, Reyes, Ch. 933, Stats. 2004) mandating that all employers with 50 or more employees conduct two hours of sexual harassment prevention training for all supervisory employees. (Gov. Code Sec. 12950.1.)
More recently, the State has adopted legislation that imposes more stringent sexual harassment prevention training requirements for certain industries in which sexual harassment and violence has been especially well-documented and problematic. In 2014, Senator Monning’s bill, SB 1087 (Ch. 750, Stats. 2014), made it mandatory for farm labor contractors to provide at least two hours of sexual harassment prevention training annually to their supervisory employees and at least an hour of sexual harassment prevention training to all other employees. (See Lab. Code Sec. 1684(a)(8).) After a study documented spotty compliance, Senator Monning followed up last year with SB 295 (Ch. 424, Stats. 2017) in order to beef up enforcement. (See Lab. Code Sec. 1697.5.) In the janitorial sector, Assemblymember Gonzalez-Fletcher’s 2016 bill, AB 1978 (Ch. 373, Stats. 2016), mandated development of biennial, in-person sexual harassment prevention training for all employees. (See Lab. Code Secs. 1420-1434.) That program is just coming online now.
In addition to these specific mandates, California’s Fair Employment and Housing Act exposes employers to potential liability if they fail to take all reasonable steps to avoid harassment, discrimination, and retaliation, in their workplaces. (Gov. Code 12940(k).) As a result, many employers undertake some form of sexual harassment prevention training for their employees even where it is not explicitly required by law.
The use of these kinds of sexual harassment prevention trainings may have helped address the problem to some degree. Nonetheless, the revelations of 2017 demonstrate that significant amounts of sexual harassment and violence have persisted in spite of these prevention training programs. That has led to a re-examination of the scope, format, and content of these trainings with an eye toward making them more effective.
One particular alternative training approach gaining increasing popularity in recent years is bystander intervention training. Such training focuses on how community members can identify and effectively disrupt instances of sexual harassment, violence, and potential violence. The idea is, in essence, to train people to overcome the common inclination to mind their own business when they observe situations that they find concerning. Instead, trainees are encouraged to proactively check in on others. Rather than verbally or physically confronting the perpetrator, however, bystander intervention trainees are generally taught techniques for de-escalation, distraction, and diversion. At the same time, trainees who can do so safely are urged to utilize that position to draw the perpetrator’s attention to the inappropriate nature of the conduct at an appropriate time.
Bystander intervention training is appealing not merely as a mechanism for disrupting and preventing individual incidents. Proponents of such training also point out that, by creating a shared sense of responsibility to stop sexual harassment and sexual violence from taking place, the trainings also encourage a cultural shift toward greater overall respect.
There is some evidence that bystander intervention training does, in fact, have this effect. Research on the impacts of bystander intervention training has revealed shifts in attitudes and increased likelihood that trainees will act to intervene in situations they perceive to involve sexual harassment or the risk of sexual violence. [5] Not surprisingly given these upsides, the use of bystander intervention training has enjoyed rapid growth. Since its origins in the mid-1990s, bystander intervention training has become a standard feature in many of the orientation sessions that California colleges and universities provide for incoming students. [6]
This bill would mandate the inclusion of a bystander intervention component in employers’ biannual sexual harassment prevention training.
Writing in opposition the bill generally, and this bystander intervention training piece particularly, the California Manufacturers & Technology Association (CMTA) writes:
Training employees on how to recognize and report sexual harassment in the workplace is an appropriate responsibility of the employer; training employees to intervene when witnessing harassment or discrimination is not. By mandating this type of education and training in the employment context, SB 1300 essentially imposes a new legal duty and obligation to act on individuals where none currently exists in law. Employees receiving this instruction from their employers will naturally feel a sense of responsibility given the employment relationship. In addition, the specificity of the mandate imposes an expectation among employees that their co-workers will respond when witnessing situation in the workplace.
This new burden increases liability for manufacturers who are responsible for the health and safety of all their employees.
Given the questions raised, CMTA argues: “The intervention of employees into potentially hostile situations deserves a bigger discussion than a footnote in this bill.”
In addition to bystander intervention training, SB 1300 would enact two other modifications to FEHA’s existing sexual harassment prevention training requirements. First, the bill would require sexual harassment prevention training for all workers, not just those in supervisory positions. Second, the bill would expand the number of employers covered by the requirement to provide sexual harassment prevention training. Currently, only those employers with 50 or more employees have to provide the training; this bill would expand the requirement to all employers with five or more employees. Taken together, these two changes would dramatically increase the number of workers who receive training on the prevention of sexual harassment.
The expansion of these training requirements will no doubt impose additional costs on employers, both in terms of providing the trainings themselves and in terms of time taken away from work to participate in the training. On the other hand, sexual harassment itself has been shown to diminish productivity, not just for the victim, but for the employer and the economy as a whole as well.[7] Moreover, employers stand to benefit economically if the trainings succeed at reducing workplace harassment and, by extension, the employer’s exposure to liability. It is for that reason that many employers already provide sexual harassment prevention training that goes well beyond the minimum required by the existing law. In that sense, one way to view the components of this bill directed at preventative training is to see them as enshrining in law what is already the best practice among employers.
8. Eliminating the legal tactic of muzzling workers preemptively
Our nation’s present reckoning with the persistent prevalence of sexual harassment has shed light on the role of certain legal tactics, in the form of contractual provisions, which have enabled harassers to shield themselves from accountability. The use of non-disparagement agreements is one.
As the name implies, non-disparagement agreements are contractually-based promises not to criticize someone, or some entity, publicly. They often come coupled with liquidated damages – meaning a pre-determined penalty for a violation -- some reportedly as high as a million dollars for a single violation. Such draconian liquidated damages provisions probably would not stand up in court (see Civ. Code Sec. 1671) and there are already certain limitations on what a non-disparagement agreement can lawfully cover. Most notably, the National Labor Relations Act does not permit employers to prevent workers from discussing sexual harassment or discrimination complaints at work or in a legal claim. (29 U.S.C. Sec. 158(a)(1).) Nonetheless, as a practical matter, even a legally infirm non-disparagement clause can still have a powerful deterrent effect on victims or witnesses who might otherwise come forward publicly.
In effect, non-disparagement agreements bind people to silence. In the context of workplace harassment, non-disparagement agreements have the effect of preventing word from spreading about harassing behavior. This is part of what allows serial harassers to go undetected, sometimes for years. If what has been widely reported is accurate, the now notorious case of Harvey Weinstein offers what may be the quintessential example.[8]
Used in the context of settlement agreements to resolve a known, existing dispute between two parties, mutual non-disparagement agreements (key elements of what are often referred to as “secret settlements”) are arguably defensible: both sides want to put the matter behind them and do not want any further reputational damage to come of it. In theory at least, the victim agrees to this voluntarily. In the context of workplace harassment claims, the defendant may be seeking to sweep the matter under the rug, so to speak, but the victim may also have a legitimate desire for privacy regarding what took place. Senate Bill 820 (Leyva, 2018) directs its attention to solving the conundrum presented by the use of non-disparagement clauses in the context of settlements or severance agreements. This bill would not impact such agreements.
This bill addresses the preemptive use of non-disparagement agreements, in exchange for a raise or a bonus, or as a condition of hire or continued employment. In these contexts, arguably, there is no evident public policy interest in enforcing silence. Employees who sign such agreements do not even know what they are agreeing to stay silent about yet. The benefits of muzzling employees in advance enure only to the employer, who is then free to proceed with substantially reduced risk that evidence of improper behavior – such as harassment – will come to light.
Here is an example of a non-disparagement clause in an employment contract, described in the Harvard Business Review as “boilerplate” language utilized by “a major corporation”:
You shall not, at any time, directly or indirectly, disparage Company, including making or publishing any statement, written, oral, electronic, or digital, truthful or otherwise, which may adversely affect the business, public image, reputation or goodwill of the company, including its operations, employees, directors and its past, present or future products or services. [9]
This bill would prohibit the preemptive use of such sweeping non-disparagement clauses. It would make it unlawful for an employer to require an applicant or employee, as a condition of hire or continued employment, to sign any document that purports to deny the employee the right to disclose information about unlawful or potentially unlawful workplace conduct, including sexual harassment. By making employers liable merely for including such a provision in an employment contract, unscrupulous employers would be prevented from relying on preemptive non-disparagement provisions to intimidate workers into silence, even when the employer knows the provision would not ultimately stand up in court.
In opposing these provisions of the bill, the Chamber writes that:
Settlement agreements are used often with regards to sexual harassment suits because the victim does not want the facts of the case being made public, so the employee will negotiate with the employer regarding settlement prior to filing a lawsuit. If the employer cannot guarantee that the employee will not disparage the employer after a settlement agreement has been made, the employer will not have the same motivation to settle a case. As the benefit of a settlement agreement for the employer is reduced, the less likely the employer is to settle claims out of court. Therefore, SB 1300 will chill the use of settlement agreements and will drive employers to fight these cases in court instead of utilizing early resolution.
As already stated, however, SB 1300 only applies to the time of hire or continued employment. It would not apply to a settlement scenario, therefore, unless continued employment was a term of the settlement, a rare occurrence.
9. Eliminating the legal tactic of requiring preemptive release of claims and rights
In legalese, to “release” or “waive” a claim or right means to give it up. When people “waive” or “release” a legal claim they might have against someone else, it means that the person agrees not to pursue that claim any further. Similarly, when people “waive” or “release” a right, they agree that they will not exercise that right.
As in the case of non-disparagement agreements, the use of waivers and releases as part of the effort to settle an existing dispute raises few public policy concerns. Indeed, finding the terms on which a plaintiff agrees to release claims is usually the whole point of a settlement. This bill would not impact the use of waivers and releases in the context of settlements or severance agreements.
This bill addresses the preemptive use of waivers, in exchange for a raise or a bonus, or as a condition of hire or continued employment. In these contexts, waivers of claims might be said to serve the public policy purpose of eliminating the possibility of future legal disputes. Similarly, it can be argued that waivers of rights limit potential dispute resolution to alternative forums, such as private arbitration, that are swifter and less costly to the parties and the public than the courts. But the public policy harms arguably outweigh these benefits by a significant margin. When employers require employees to waive claims preemptively, it provides a mechanism for regularly wiping out claims that might otherwise lead to accountability and reform. In the same vein, when employers can require employees to waive rights preemptively, it allows employers to whisk all allegations behind the curtain of confidential arbitration, thus preventing abuses from coming to light publicly. In these ways, allowing preemptive waivers of claims and rights shields abusive practices.
Sexual harassment is a prime example. One southern California company required all of its employees agree, upon hire, to mandatory, confidential arbitration of any workplace disputes.[10] It also made it a regular practice to have its employees sign documents waiving any claims they might otherwise have had against the company in exchange for small wage increases.[11] Sexual harassment allegations eventually surfaced against the Chief Executive Officer of the company anyway, but only after years during which he is reported to have sexually harassed and assaulted numerous employees.
California law already places certain restrictions on the use of releases. Courts have found that some claims may not be released as a matter of public policy. (Civ. Code Sec. 1668; Tunkl v. Regents of the University of California (1963) 60 Cal.2d 92 (1963).) Moreover, releases and waivers of claims are subject to the general principals of contract law. If a court finds that worker waived rights or claims under the influence of fraud or duress, for instance, it would invalidate the waiver and the worker could proceed on the underlying claim in spite of having signed a waiver. (Civ. Code Secs. 1567 and 1569.) Similarly, if a court determines the terms of a contract are unconscionable, it may void the unconscionable term even the entire contract. (Civ. Code Sec. 1670.5.)
This bill would make it an unlawful employment practice for an employer to require an employee, in exchange for a raise or bonus, or as a condition of employment or continued employment, to sign a release of a claim or a right under the Fair Employment and Housing Act. That would include claims for sexual harassment and the right to file a complaint with a state agency or pursue a civil action for sexual harassment.
Here again, the group led by the California Chamber of Commerce argues that SB 1300 will make settlements and severance payments more difficult:
SB 1300 prohibits the use of a general release in exchange for a raise or bonus, or as a condition of employment or continued employment. However, the terms “raise” or “bonus” are not defined. For example, when terminating an employment relationship, severance agreements are often used. Even where there is no indication of an underlying claim, an employee is provided additional compensation in exchange for a general release. This is beneficial to most employees, especially to someone who needs additional time to find new employment. It is unclear under SB 1300 as to whether a severance payment would be considered a “bonus” and therefore prohibited.
The Chamber-led group also expresses concern that SB 1300’s restriction on the use of general releases during ongoing employment will discourage employers from double-checking that they have been complying with employment laws, a practice referred to as “self-audits”:
the bill provides a disincentive to employer to take remedial action, such as wage and hour self-audits. Self-audits are extremely burdensome, time consuming and expensive. This is not a task employers take lightly and, if an employer is not permitted to utilize a general release of claims in exchange for a “bonus” or “raise” it may disincentivize employers to conduct self-audits.
SB 1300 only restricts the use of release of claims “under this part,” meaning FEHA. Wage and hour laws do not fall within FEHA and so it is not clear that anything in SB 1300 would disincentivize wage and hour self-audits.
10. Ensuring that the fear of paying attorneys’ fees and costs does not chill victims
Under existing law, FEHA provides for an award of attorneys’ fees to a prevailing plaintiff, but not to a defendant except under narrow circumstances. (Gov. Code Sec. 12965(b); Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 864-865 (holding it improper to award attorney fees to prevailing defendants unless the FEHA case was “frivolous, unreasonable, or totally without foundation”).)
This one-way fee shifting structure reflects the public policy that society should incentivize enforcement of our civil rights laws. The prospect of obtaining attorneys’ fees makes attorneys willing to bring these cases if they think they can win, even when the client cannot pay. At the same time, if prevailing defendants could obtain attorneys’ fees as well, it might cause plaintiffs to be afraid to bring these cases for fear of the financial punishment if they lose. For that reason, we do not punish civil rights plaintiffs who lose with having to pay the defendant’s attorneys’ fees, unless their case was frivolous.
Under a different existing law, if, during civil litigation, a defendant makes a settlement offer to the plaintiff, the plaintiff rejects the offer, and the final verdict for the plaintiff is less than what the defendant’s settlement offer was, then the court may award all attorneys’ fees and costs that the defendant incurred from the time the settlement offer was rejected. (Code. Civ. Proc. Sec. 998.) The public policy behind this statute is to promote the settlement of legal disputes.
A conundrum arises in cases where both FEHA’s fee-shifting rule and Code of Civil Procedure Section 998’s fee shifting rule apply. In other words, if a defendant makes a settlement offer in a FEHA civil rights case, the plaintiff rejects that offer, and the plaintiff loses (or wins but does not get as much as the plaintiff would have gotten by accepting the settlement offer), can the court make the plaintiff pay all of the defendant’s post-offer attorneys’ fees and costs? The California courts have split on this question. (Compare Sviridov v. City of San Diego (2017) 14 Cal. App. 5th 514, to Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc., (4th Dist., Div. 2 Jan. 2, 2018) Case No. E061677.)
This bill would specify that the post-offer fee shifting effects of Code of Civil Procedure Section 998 do not apply to cases brought to enforce rights under FEHA. That choice reflects the belief that the public policy not to deter the enforcement of bona fide civil rights claims outweighs the public policy of encouraging settlements. The argument is that, while Code of Civil Procedure Section 998 may be entirely appropriate and useful in business litigation (to settle a contract dispute, say), when it is applied to lawsuits to enforce civil rights, it can be used as a way to intimidate plaintiffs from pursuing valid claims. If Code of Civil Procedure Section 998 applied to civil rights claims, then a defendant could make a lowball offer to the plaintiff almost immediately, forcing the plaintiff to choose between accepting the offer – effectively giving up on the claim – or continuing on, but now with the risk of having to pay a significant price, in the form of attorney’s fees and costs. It is rational to assume that, confronted by such a risk, many plaintiffs would simply walk away from the effort to vindicate their civil rights.
This bill would ensure that defendants cannot put Code of Civil Procedure Section 998 to that use. By the same token, so that plaintiffs cannot use FEHA’s one way fee-shifting rule to bring or drag out meritless claims without any consequence, the bill would also incorporate case law that allows judges to award attorneys’ fees and costs to the defendant, even in a civil rights case under FEHA, if the lawsuit was frivolous, unreasonable, or totally without foundation when brought, or if the plaintiff continued to litigate the case after the lawsuit had clearly become that way.
11. Proposed Amendments
As the bill’s prohibition on requiring employees to sign non-disparagement agreements or releases of claims applies at the point of hire as well as during continued employment, the author may wish to insert a reference to applicants, as well as employees, into that component of the bill. Since this is a minor, technical amendment, however, it can wait until such time as other amends may be taken.
Support: American Association of University Women of California; American Civil Liberties Union of California; American Federation of State, County and Municipal Employees; CA Conference Board of the Amalgamated Transit Union; CA Conference of Machinists; California Teamsters Public Affairs Council; Consumer Attorneys of California; Engineers and Scientists of CA, IFPTE Local 20, AFL-CIO; Legal Aid at Work; International Longshore & Warehouse Union; National Council of Jewish Women; Professional and Technical Engineers, IFPTE Local 21, AFL-CIO; Public Counsel; SAG-AFTRA; Service Employees International Union; UNITE-HERE, AFL-CIO; Utility Workers of America
Opposition: Agricultural Council of California; Associated Builders and Contractors, Inc. – Northern California Chapter; Associated General Contractors; Brea Chamber of Commerce; California Ambulance Association; California Apartment Association; California Association for Health Services at Home; California Association of Joint Powers Authorities; California Chamber of Commerce; California Employment Law Council; California Farm Bureau Federation; California Hotel and Lodging Association; California Landscape Contractors Association; California League of Food Processors; California Manufacturers and Technology Association; California Restaurant Association; California Retailers Association; California Special Districts Association; California State Association of Counties; Cerritos Regional Chambers of Commerce; Citizens Against Lawsuit Abuse; Civil Justice Association of California; Culver City Chamber of Commerce; Family Business Association of California; Fresno Chamber of Commerce; Gateway Chamber Alliance; Greater Bakersfield Chamber of Commerce; Greater Coachella Valley Chamber of Commerce; Greater Conejo Valley Chamber of Commerce; Murrieta Chamber of Commerce; National Association of Mutual Insurance Companies; National Federation of Independent Business; Official Police Garages of Los Angeles; Orange County Business Council; Palm Desert Area Chamber of Commerce; Personal Insurance Federation of California; Rancho Cordova Chamber of Commerce; Redondo Beach Chamber of Commerce; San Gabriel Valley Economic Partnership; Santa Ana Chamber of Commerce; Santa Maria Valley Chamber of Commerce; South Bay Association of Chambers of Commerce; Western Growers Association; Wildomar Chamber of Commerce; Wine Institute
HISTORY
Source: California Employment Lawyers Association; Equal Rights Advocates
Related Pending Legislation:
SB 820 (Leyva, 2018) would prohibit the use of non-disclosure agreements, sometimes known as “secret settlements,” to resolve allegations of sexual harassment, except at the discretion of the victim. SB 820 is currently pending consideration before the Senate Committee on Judiciary.
SB 1038 (Leyva, 2018) would impose individual, personal liability on an employee who retaliates against anyone else for filing a complaint, testifying, assisting in a proceeding or, otherwise opposing harassment and discrimination, among other unlawful employment practices. SB 1038 is currently pending consideration before the Senate Committee on Judiciary.
SB 1223 (Galgiani, 2018) would direct the California Department of Industrial Relations to develop a harassment and discrimination prevention policy and training standard for use by employers in the construction industry. SB 1223 is currently pending consideration before the Senate Labor and Industrial Relations Committee.
SB 1343 (Mitchell, 2018) would, like this bill, expand the reach of workplace sexual harassment prevention training requirements to include all employees (not just supervisory employees) and all workplaces with more than five employees (not just those with more than 50 employees). In addition and unlike this bill, SB 1343 would direct the Department of Fair Employment and Housing to develop a two hour video training course on workplace sexual harassment prevention, to be hosted on its Web site and made available to all California employers. Finally, and unlike this bill, SB 1343 would require DFEH to make its workplace sexual harassment materials available in at least three “alternate” languages. SB 1343 is currently pending consideration before the Senate Committee on the Judiciary.
AB 1870 (Reyes, 2018) would extend the statute of limitations for filing a claim of harassment, discrimination, or retaliation, among other unfair employment and housing practices, with the California Department of Fair Employment and Housing. AB 1870 is currently pending consideration before the Assembly Committee on Labor and Employment.
SB 224 (Jackson, 2017) would add “elected officials,” “directors and producers,” and “lobbyists” to the list of examples of relationships covered by Civil Code Section 51.9’s prohibition on sexual harassment in professional, business, and service contexts. SB 224 is awaiting policy committee assignment in the Assembly.
SB 419 (Portantino, 2017) would, with regard to sexual and related forms of harassment, explicitly apply the anti-retaliation protections of the California Fair Employment and Housing Act (FEHA) to legislative employees and lobbyists. It thus underscores that FEHA prohibits the Legislature from taking adverse action against a lobbyist or legislative employee who: files a sexual harassment complaint with the Department of Fair Employment and Housing (DFEH); testifies or assists in any proceeding related to such a complaint; or otherwise acts to oppose any practice forbidden under FEHA. SB 419 is awaiting policy committee assignment in the Assembly.
Prior Legislation:
AB 403 (Melendez, Ch. 2, Stats. 2018) provided whistleblower protections for employees and Members of the Legislature. It authorized the whistleblower to submit a complaint with either house of the Legislature pursuant to its rules alleging a violation of the house ethics rules or retaliatory conduct by the Member for attempting to file the complaint. AB 403 also provided a right of action for a legislative employee who has made a protected disclosure and suffered an adverse action for making that disclosure.
SB 396 (Lara, Ch. 858, Stats. 2017) required employers with five or more employees to put up a DFEH poster regarding transgender rights and mandated that employers with 50 or more employees include a component regarding harassment based on gender identity, gender expression, and sexual orientation in their sexual harassment prevention training.
AB 2053 (Gonzalez, Ch. 306, Stats. 2014) required the inclusion of a component in the two hour training on prevention of “abusive conduct,” defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”
AB 1501 (Niello, 2007) would have deleted the two hour classroom requirement and the provision that the trainers or educators have knowledge and expertise in the prevention of harassment, discrimination, and retaliation. AB 1501 died in the Assembly Committee on Transportation.
AB 1825 (Reyes, Ch. 933, Stats. 2004) added Section 12950.1 to the Government Code, mandating that all employers with 50 or more employees conduct two hours of sexual harassment prevention training for all supervisory employees.
SB 76 (Corbett, Ch. 671, Stats. 2003) which made it clear that employers may be responsible for sexual harassment of its employees, applicants, or independent contractors by non-employees.
AB 2264 (Speier, Ch. 908, Stats. 1992) added Section 12950 to the Government Code, requiring: DFEH to amend its poster regarding workplace discrimination to include information on the illegality of sexual harassment; employers to put up this poster in a prominent and accessible location; and employers to distribute to each employee a DFEH information sheet on sexual harassment or equivalent content.
Prior Vote: Senate Labor and Industrial Relations Committee (Ayes 4, Noes 1)
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Select Task Force on the Study of Harassment in the Workplace (June 2016) U.S. Equal Employment Opportunity Commission, p. 5-14 <https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf> (as of Apr. 5, 2018). ↑
Demographic Data Provided by Justices and Judges, Relative to Gender, Race/Ethnicity, and Gender Identity/Sexual Orientation (Gov. Code, § 12011.5(n)) As of December 31, 2017, Judicial Council of California <http://www.courts.ca.gov/documents/2018-JO-Demographic-Data.pdf> (as of Apr. 5, 2018). ↑
See Merchant, The Insidious Economic Impact of Sexual Harassment (Nov. 29, 2017) Harvard Business Review <https://hbr.org/2017/11/the-insidious-economic-impact-of-sexual-harassment> (as of Mar. 30, 2018). ↑
Faley, R.H., Knapp, D.E., Kustis, G.A. et al., Estimating the Organizational Costs of Sexual Harassment: The Case of the U.S. Army (1999) Journal of Business and Psychology 13: 461. <https://doi.org/10.1023/A:1022987119277> (as of Apr. 16, 2018) ↑
Coker, Cook-Craig, Williams, Fisher, Clear, Garcia and Hegge. Evaluation of Green Dot: An Active Bystander Intervention to Reduce Sexual Violence on College Campuses. (June 2, 2011) Violence Against Women <http://vaw.sagepub.com/content/17/6/777> (as of February 8, 2018), pp. 780-781. ↑
Kingkade. This Is Why Every College Is Talking About Bystander Intervention. (Feb. 8, 2016) Huffington Post <https://www.huffingtonpost.com/entry/colleges-bystander-intervention_us_56abc134e4b0010
e80ea021d> (as of Feb. 8, 2017). ↑
See Merchant, The Insidious Economic Impact of Sexual Harassment (Nov. 29, 2017) Harvard Business Review <https://hbr.org/2017/11/the-insidious-economic-impact-of-sexual-harassment> (as of Mar. 30, 2018); and Faley, R.H., Knapp, D.E., Kustis, G.A. et al., Estimating the Organizational Costs of Sexual Harassment: The Case of the U.S. Army (1999) Journal of Business and Psychology 13: 461. https://doi.org/10.1023/A:1022987119277 ↑
Fabio, The Harvey Weinstein Effect: The End Of Nondisclosure Agreements In Sexual Assault Cases? (Oct. 26, 2017) Forbes <https://www.forbes.com/sites/michellefabio/2017/10/26/the-harvey-weinstein-effect-the-end-of-nondisclosure-agreements-in-sexual-assault-cases/#3dc80fea2c11> (as of Feb. 10, 2018). ↑
Lobel, NDAs Are Out of Control. Here’s What Needs to Change. (Jan. 30, 2018) Harvard Business Review <https://hbr.org/2018/01/ndas-are-out-of-control-heres-what-needs-to-change> (as of Feb. 8, 2018). ↑
Weber, American Apparel Ordered to Pay Over $3 Million in Arbitration (June 9, 2015) Wall Street Journal <https://www.wsj.com/articles/american-apparel-ordered-to-pay-over-3-million-in-arbitration-1433891690> (as of Apr. 1, 2018). ↑
Chow, Dov Charney 5: Suits (Dec. 8, 2016) Startup Podcast <https://www.gimletmedia.com/startup/part-5-suits-season-4-episode-8> (as of Apr. 1, 2018). ↑
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Richard Pan, Chair
2017 - 2018 Regular
Bill No: SB 1300 Hearing Date: April 11, 2018
Author: | Jackson | ||
Version: | April 4, 2018 | ||
Urgency: | No | Fiscal: | Yes |
Consultant: | Gideon Baum | ||
Subject: Unlawful employment practices: discrimination and harassment
KEY ISSUE
Should the Legislature require that all employees receive sexual harassment training and education, include bystander intervention training as a part of the training, and prohibit a release of claims or nondisparagement agreement between employers and employees under specified circumstances?
Should the Legislature provide that plaintiffs do not need to prove that they endured sexual harassment or discrimination when alleging that an employer failed to take all necessary steps to prevent sexual harassment or discrimination?
Should the Legislature make a declaration to intend to provide courts guidance on the severe and pervasive standard in sexual harassment litigation?
ANALYSIS
Existing law:
- Prohibits an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire, discriminate against, or harass the person. (Government Code §12940)
- Explicitly prohibits an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. (Government Code §12940(k))
- Defines an employer as any person regularly employing 5 or more individuals, directly or indirectly, except a religious association or non-profit. (Government Code §12926)
- Requires each employer to post a poster on discrimination in employment, which includes information relation to the illegality of sexual harassment, in a prominent and accessible location in the workplace. (Government Code §12950)
- Requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of assuming supervisorial duties and once every 2 years.
(Government Code §12950.1) - Extends liability for sexual harassment education and training to any person who regularly receives the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. (Government Code §12950.1)
- Provides that any person or class claiming to be aggrieved may file a complaint with the Department of Fair Employment and Housing (DFEH), but permits the hiring of private counsel to represent the aggrieved person or class once the claim has been filed.
(Government Code §§12960-12962)
This bill:
- Reduce the employment threshold for harassment training from 50 employees to all employees covered under FEHA (5 or more).
- Expands the number of employees who are required to attend the training from supervisorial employees to all employees. The training must be provided within 6 months of the employee being hired and once every 2 years.
- Requires including bystander intervention training as a part of the sexual harassment training, which would include information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.
- Requires that the sexual harassment training and education also include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
- Requires that employers provide information to each employee on how and to whom harassment should be reported and information on how to contact the DFEH to report a violation.
- Provides that, in an action alleging that an employer, labor organization, or other covered entity, failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, the plaintiff does not need to prove that he or she endured sexual harassment or discrimination.
- Provides that, in an action described above, it shall 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 become pervasive, and that the defendant failed to take all reasonable steps to prevent the same or similar conduct from recurring.
- Limits attorney and expert witness fees for a prevailing defendant to cases where the court finds the action was frivolous, unreasonable, or totally without foundation when brought or the plaintiff continued to litigate after it clearly became so.
- Prohibits requiring an employee to sign a release of a claim or right under the Fair Employment and Housing Act (FEHA) in exchange for a raise or bonus, or as a condition of employment or continued employment.
- Prohibits requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
- Declares any release of claim or nondisparagement agreement described above to be contrary to public policy and unenforceable.
- Declares the intent of the Legislature and provides guidance to California courts regarding the legal standard for application of laws regarding harassment in California’s workplaces.
COMMENTS
1. Need for this bill?
The author states the following:
“Beginning in 2017, propelled by movements such as #MeToo and #WeSaidEnough, brave women began coming forward and exposing the prevalence of sexual harassment in the workplace. Along with showcasing how common sexual harassment is across industries and the harm it inflicts on victims’ emotional well-being, their careers and earnings, these stories shed light on the complex legal and cultural factors that enable sexual harassment to persist in the workplace.
As a result of the #MeToo movement, a number of powerful perpetrators were subsequently exposed and fired. Yet, as important as it is to hold perpetrators accountable, it has become clear that preventing sexual harassment in the workplace must involve more than that. Enabled by our work culture and stifled by legal challenges, moving toward a harassment-free culture in California will require comprehensive policy and legal reforms…
SB 1300 seeks to comprehensively address sexual harassment in the workplace by prohibiting legal tactics that prevent victims from speaking out about abuse and seeking justice; strengthening sexual harassment training requirements and holding employers accountable for their duty to prevent harassment; and providing guidance to the courts to ensure that the “severe or pervasive” legal standard is fairly applied to protect victims of work-related harassment.”
2. Key Components of SB 1300:
Broadly speaking, SB 1300 touches on four areas: the severe or pervasive standard for sexual harassment claims, sexual harassment training and education for employees, disparagement agreements and releases of claims, and burden of proof on plaintiffs when alleging that an employer did not take the necessary steps to prevent harassment and discrimination in the workplace. Each is discussed below.
Severe or Pervasive Standard
As noted in a recent Senate Judiciary Committee backgrounder on California’s legal standard for sexual harassment, titled “Justice for Victims: Re-examining California’s Legal Standard for Sexual Harassment”, case law requires that a plaintiff prove that the sexual harassment that occurs in the workplace must be severe or pervasive enough to alter the conditions of employment due to the plaintiff’s sex. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462) If, on the other hand, the harassment is occasional or trivial, it will not rise to that legal bar. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283) As noted by the same backgrounder, this approach has drawn significant criticism from legal scholars who believe that this places an undue burden on plaintiffs to prove that they are the victim of discrimination.
SB 1300 declares the intent of the Legislature that harassment creates an environment that deprives workers of their statutory right to work in a place free of discrimination, and then cites Justice Ginsburg’s concurrence in Harris v. Forklift Systems (1993), which argued that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”
SB 1300 also finds that a single incident of harassment creates a triable issue, striking the 9th Circuit’s opinion in Brooks. SB 1300 also declares that the existence of a hostile work environment is based on the totality of factors, and may include a single discriminatory remark, and, in that regard, affirms the decision in Reid v. Google (2010). However, SB 1300 declares its disapproval of Kelley v. Conco Companies (2011), arguing that all workplaces should be bound by a single legal standard for sexual harassment.
Finally, SB 1300 declares that harassment cases are rarely appropriate for summary judgment and affirms the decision in Nazir v. United Airlines, Inc. (2009).
Sexual Harassment Training and Education
As noted above, SB 1300 would reduce the training threshold for employers from 50 employees to a single employee, requiring that all employers must provide the training. Additionally, SB 1300 requires that, as a part of the existing 2 hour training, employees receive bystander intervention training to learn how to respond if they witness harassment or discrimination. As noted in a recent Senate Judiciary Committee informational hearing on developing a harassment-free workplace, bystander intervention training was developed in the 1990s and has been used on college campuses.
Disparagement Agreements and Releases of Claims
SB 1300 would prohibit employers from requiring employees to sign a release of claims under FEHA in exchange for a raise or as a condition of employment. Additionally, SB 1300 would prohibit requiring employees to sign nondisparagement agreements that inhibit the ability of an employee to disclose illegal acts in the workplace, including sexual harassment.
Burden of Proof on Plaintiffs
Under existing law, employers are required to take all reasonable steps necessary to prevent discrimination and sexual harassment in the workplace. As was noted above, if an employer fails to meet this affirmative responsibility, he or she can be subject to DFEH enforcement actions or a lawsuit from his or her employees. SB 1300 would provide that an employee who sues his or her employer would not need to prove that he or she endured sexual harassment. This language appears to be related to issues surrounding the severe and pervasive standard, as the Senate Judiciary Committee backgrounder cited case law that found that conduct that is not directed at the plaintiff should be considered less severe and that unlawful conduct should “permeate” a workplace.
3. Staff Comments:
A Brief word on Plaintiffs and Employers Creating a Discrimination-Free Workplace
As discussed above, SB 1300 provides that a plaintiff does not need to prove that he or she suffered sexual harassment or discrimination to prevail in a claim that the employer failed to take all necessary steps to prevent sexual harassment and discrimination. Through the lens of the Senate Judiciary Committee’s backgrounders, it is possible to view this language as an attempt to clarify that an employee who is not specifically targeted by sexual harassment or discrimination can still be a victim of sexual harassment or discrimination if it is occurring in the workplace and is directed at someone else. However, that is not what a plain reading of the language suggests: rather, it suggests that an employer can be liable for failing to take action even if nothing transpired that warranted action. While the recent amendments added language on the plaintiff’s burden of proof, it is still possible to read the language as creating a requirement where compliance is unclear at best and essentially infeasible in the most extreme case.
Therefore, the author may wish to revisit the provisions that clarify that the plaintiff must be a victim of sexual harassment to seek redress.
A Brief Word on Expanding the Sexual Harassment Training Requirements
SB 1300 would require all employers to provide sexual harassment training, and to provide that training to all employees, not just supervisorial employees. Additionally, the training also includes a bystander intervention training component, yet maintains a 2 hour threshold for the entire training. The author may wish to consider explicitly expanding the cap to 2.5 or 3 hours to reflect the inclusion of the bystander intervention training.
Furthermore, the author may want to consider how bystander intervention training will work in the workplace. Unlike a college campus, the workplace is a fraught environment of differing positions and power dynamics. Fundamentally, unless the workplace is organized, asking an employee to confront a supervisor, even with the advantage of training, may be asking too much. The author may wish to consider explicitly stating that failing to utilize bystander intervention training does not make an employee liable under Government Code §12940.
Additionally, SB 1300 amends a cross reference to Government Code §19995.4(b), by striking the term “supervisorial” from “supervisorial employee”. However, Government Code §19995.4 only covers supervisorial state employees. It is unclear if the amended code citation is trying to reference all state employees or just state supervisorial employees.
Finally, as was noted above, non-profit corporations are exempted from FEHA. The author may wish to consider if it would be appropriate to include non-profit corporations in the sexual harassment training. This would ensure that the employees of non-profits are not excluded from the benefits of sexual harassment training and education.
4. Double Referral:
This bill has been double referred and, if approved by this committee, it will be sent to the Senate Judiciary Committee for hearing.
5. Proponent Arguments:
The sponsors of SB 1300, the California Employment Lawyers Association (CELA) and Equal Rights Advocates (ERA), argue the following:
“In recent months, sexual harassment has gained long-overdue attention as a large number of women (and some men) have come forward about their experiences with sexual harassment in the workplace. As we have learned from the many stories that have come to light, our laws have too often failed to protect workers from the kind of sexual harassment and discrimination that they were designed to prevent…. Our lawyers have found that there are significant gaps in the FEHA that have denied justice to victims of sexual harassment, that have allowed sexual perpetrators to evade its reaches, and that have generally allowed sexual harassment in the workplace to persist. SB 1300 addresses these gaps in the law by proposing several important reforms.
First, SB 1300 will provide statutory guidance on the “severe or pervasive” legal standard for sexual harassment claims, to ensure that the standard is consistently and fairly applied to protect victims of sexual harassment… For example, in Brooks v. City of San Mateo (2000) 229 F.3d 917, the plaintiff, Patricia Brooks, a 911 dispatcher, was responding to a 911 call when her coworker “placed his hand on her stomach and commented on its softness and sexiness.” …. The judge ruled that the conduct was not severe enough to give rise to a sexual harassment claim…. We believe it is a perverse reading of our anti-harassment laws to give perpetrators “one free grope,” as the court in Brooks did.
One critical component to combatting sexual harassment in the workplace is to make sure that employers take the necessary steps to prevent the harassment from occurring in the first place. This duty should start as soon as there is unwelcome conduct. SB 1300 makes it clear, by amending Section 12940(k) of the Government Code, that if the employer knew or should have known that the conduct was unwelcome to the plaintiff (conduct that, if increased in severity or became pervasive, would meet the legal standard for harassment or discrimination), the employer must take all reasonable steps to prevent the same or similar conduct from recurring.
As we have seen in some of the recent high profile sexual harassment cases, employers and serial harassers have employed creative legal tactics to try to get around our anti-harassment and anti-discrimination laws. Some employers require workers to sign various legal documents, as a condition of employment, as a way to silence victims, escape liability, or minimize public scrutiny…. SB 1300 will make it an unlawful employment practice for an employer 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. The bill would also prohibit an employer from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
Finally, SB 1300 will strengthen sexual harassment training so that it is more effective and reaches more people in the workplace. Under current law, only employers with 50 or more employees are required to provide sexual harassment training and only to supervisors. SB 1300 would require that all employers covered under FEHA (employers with 5 or more employees) provide sexual harassment training to all employees, not just supervisory employees. In addition, the sexual harassment training will be required to include bystander intervention training, which includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe such behavior.”
6. Opponent Arguments:
The California Chamber of Commerce opposes SB 1300, arguing:
“Standing is a pillar in our judicial system. There are three requirements for standing: (1) injury in fact (an invasion of a legally protected interest); (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Standing provides protections to our legal system and ensures "courts reserve their judicial power for `concrete legal issues, presented in actual cases, not abstractions.'"…
SB 1300 runs contrary to the Constitution in that it removes the standing requirement. Per SB 1300, “A plaintiff in an action alleging an unlawful employment practice under this subdivision is not required to prove that the plaintiff endured sexual harassment or discrimination for purposes of showing that the defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring” (emphasis added). Meaning, a plaintiff who has not suffered from sexual harassment or discrimination can still bring an action against the employer….
FEHA litigation matters are expensive. A 2015 study by insurance provider Hiscox regarding the cost of employee lawsuits under FEHA estimated that the cost for a small- to mid-size employer to defend and settle a single plaintiff discrimination claim was approximately $125,000. Thus, even if FEHA or the courts determine that no violation occurred and the employer did have the recommended preventative measures in place, defending this type of claim is extremely costly to employers.
SB 1300 prohibits the use of a general release in exchange for a raise or bonus, or as a condition of employment or continued employment. However, the terms “raise” or “bonus” are not defined…
Settlement agreements are used often with regards to sexual harassment suits because the victim does not want the facts of the case being made public, so the employee will negotiate with the employer regarding settlement prior to filing a lawsuit. If the employer cannot guarantee that the employee will not disparage the employer after a settlement agreement has been made, the employer will not have the same motivation to settle a case. As the benefit of a settlement agreement for the employer is reduced, the less likely the employer is to settle claims out of court. Therefore, SB 1300 will chill the use of settlement agreements and will drive employers to fight these cases in court instead of utilizing early resolution.”
7. Prior Legislation:
AB 1825 (Reyes), Chapter 933, Statutes of 2004, creates the sexual harassment education and training requirement for employers with 50 or more employees.
SUPPORT
California Employment Lawyers Association (Co-sponsor)
Equal Rights Advocates (Co-sponsor)
American Association of University Women of California
American Civil Liberties Union of California
Consumer Attorneys of California
Service Employees International Union
OPPOSITION
Agricultural Council of California
Associated Builders and Contractors, Inc. – Northern California Chapter
Associated General Contractors
Association of California Water Agencies
Brea Chamber of Commerce
California Ambulance Association
California Apartment Association
California Association for Health Services at Home
California Association of Joint Powers Authorities
California Chamber of Commerce
California Employment Law Council
California Hotel and Lodging Association
California Landscape Contractors Association
California League of Food Processors
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
California Special Districts Association
California State Association of Counties
Citizens Against Lawsuit Abuse
Civil Justice Association of California
Culver City Chamber of Commerce
Family Business Association of California
Folsom Chamber of Commerce
Fresno Chamber of Commerce
Greater Bakersfield Chamber of Commerce
Greater Coachella Valley Chamber of Commerce
Greater Conejo Valley Chamber of Commerce
Murrieta Chamber of Commerce
National Federation of Independent Business
Official Police Garages of Los Angeles
Orange County Business Council
Palm Desert Area Chamber of Commerce
Rancho Cordova Chamber of Commerce
San Gabriel Valley Economic Partnership
Santa Maria Valley Chamber of Commerce
Western Growers Association
Wildomar Chamber of Commerce
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Discussed in Hearing
2MIN
Senate Floor
5MIN
Assembly Floor
1H
Assembly Standing Committee on Appropriations
1H
Assembly Standing Committee on Labor and Employment
19MIN
Senate Floor
10MIN
Senate Standing Committee on Appropriations
27MIN
Senate Standing Committee on Judiciary
33MIN
Senate Standing Committee on Labor and Industrial Relations
Bill Author
Bill Co-Author(s):
