THE area of sexual harassment litigation involves complex rules that are continually evolving. Last month, California lawmakers signed some laws designed to close several loopholes in California’s sexual harassment laws. Some of the more important common-sense changes include the following:
A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if it has unreasonably interfered with the employee’s work performance or created an intimidating, hostile, or offensive work environment. California rejects the “one free grope” standard created by the 9th Circuit federal court in 2000.
The existence of a hostile work environment depends upon the totality of the circumstances. A discriminatory remark, even if not made directly in the context of an employment decision, or uttered by a non-decision-maker, may be relevant, circumstantial evidence of discrimination. This rejects the “stray remarks doctrine” previously upheld by courts.
In determining whether or not a hostile environment existed, courts are directed to only consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of job duties. It is irrelevant that a particular occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.
The employee need not prove that his or her tangible productivity has declined as a result of the harassment. It is enough to prove that a reasonable person subjected to the discriminatory conduct would find the harassment altered working conditions as to make it more difficult to do the job.
Prohibits the release-of-claims and non-disparagement agreements that are often slipped into contracts workers sign when accepting a job offer, or receiving a promotion, raise, or bonus. In many cases, workers unknowingly sign away their rights to bring harassment or discrimination claims to court or to speak out about sexual harassment and other workplace violations.
The requirement that the employee must prove an inability to easily terminate the relationship in order to claim harassment is eliminated.
A contract or settlement agreement that purports to waive a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment is now void and unenforceable.
Prohibits any provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. Allows a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court, to be included in a settlement agreement upon the request of the claimant. However, this provision does not apply if a government agency or public official is a party to the settlement agreement.
Employers with 5 or more employees, including temporary or seasonal employees, are required to provide at least 2 hours of sexual harassment training to all supervisory employees, and at least one hour of sexual harassment training to all nonsupervisory employees, by January 1, 2020, and once every 2 years thereafter.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com or our Facebook page Joe Sayas Law. [C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully recovered wages and other monetary damages for thousands of employees and consumers. He was named Top Labor & Employment Attorney in California by the Daily Journal, consistently selected as Super Lawyer by the Los Angeles Magazine, and is the recipient of PABA’s Community Champion Award for 2016.]