Keeping Up with the Legislature: 2019 Brings Changes to the Fair Employment and Housing Act

By Kelly Trainer, Partner, and Pooja Patel, Associate, Burke, Williams & Sorensen

In response to the #metoo movement in 2017, the California Legislature introduced various bills to amend the Fair Employment and Housing Act (“FEHA”). Governor Brown signed several of these bills and they went into effect on January 1, 2019. As with the remainder of the FEHA, these changes apply to all public employers.

SB 1421 expands the scope of disclosable records under the California Public Records Act. Generally, the personnel records of peace officers and custodial officers are confidential and not disclosed in any criminal or civil proceeding except through the discovery process. SB 1421 allows the disclosure of records: (1) relating to an incident in which a sustained finding was made that a peace or custodial officer engaged in sexual assault involving a member of the public;” (2) relating to report, investigation, or finding of incidents that involve the discharge of a firearm by a peace or custodial officer and an incident in which the use of force by a peace or custodial officer resulted in death or great bodily injury; and (3) relating to an incident in which a sustained finding was made of dishonesty by a peace or custodial officer.

SB 1300or the Omnibus Sexual Harassment Bill, amends the FEHA by adding in Sections 12923, 12964.5 and 12950.2 to the Government Code. The new provisions simply state the Legislature’s understanding of appropriate legal standards. Theoretically, courts could simply reject the changes and proceed with its currently applied jurisprudence. We expect these issues to be heavily litigated. In sum, the changes in SB 1300 will make it easier for plaintiffs to file and litigate harassment claims against employers and make it more difficult for employers to defeat harassment claims on summary judgment.

Declined Tangible Productivity Unnecessary. SB 1300 affirms the standard that the plaintiff does not need to prove declined tangible productivity as a result of the harassment. Instead, the plaintiff need only prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so as to make it more difficult to do the job.

Single Incident Sufficient. Application of SB 1300 expands current law to establish an actionable harassment claim. Currently, the complained of conduct must be sufficiently “severe or pervasive.” Generally, this requires either one extremely severe instance or multiple less severe instances. Under SB 1300, a single incident of harassment that has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment, may be sufficient to create a triable issue regarding the existence of a hostile work environment. Accordingly, a plaintiff will not necessarily need to allege multiple incidents to meet the “severe and pervasive” standard to establish a case of a hostile work environment; one incident of harassing conduct could more easily constitute unlawful “severe and pervasive” harassment.

“Stray Remarks” Relevant. SB 1300 affirms the standard that the existence of a hostile work environment depends on the totality of the circumstances. Therefore, even if a discriminatory remark is made not directly in the context of an employment decision or uttered by a non-decision-maker, a court will still consider the remark as relevant, circumstantial evidence of discrimination.

Industry Culture Irrelevant. Currently, in evaluating whether alleged harassment is triggered by a victim’s protected status (e.g., sex or race), a court might consider the general industry culture to determine discriminatory intent. For example, a court might interpret certain sexually explicit statements to not be motivated by gender because vulgar language is commonly used in the entire industry or workplace. SB 1300 disapproves the current standard and declares the legal standard for sexual harassment will not vary by type of workplace. Under the new standard, in determining whether a hostile environment exists, courts should consider the nature of the workplace in a hostile work environment claim only “when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties.” Therefore, it is irrelevant that an occupation may have been characterized by a greater frequency of sexually related commentary or conduct in the past.

SB 1300 carves out a small exception: the nature of the workplace is considered if witnessing or engaging in sex-related conduct is integral to the job.

Summary Judgement Rarely Appropriate. SB 1300 affirms that hostile work environment cases involve issues “not determinable on paper.” That means that harassment cases will rarely be appropriate for disposition on summary judgment.

Expands Employers’ FEHA Liability for Third Parties. Currently, employers are responsible for non-employees’ sexual harassment only if the employer knew or should have known about the conduct. Under SB 1300, an employer is now responsible for harassment by a third party based on any protected status, rather than just sex.

Limits Release and Non-Disparagement Agreements. SB 1300 prohibits employers from requiring an employee to sign, as a condition of employment, continued employment, or in exchange for a raise or bonus: (1) a release of FEHA claims or rights or (2) a non-disparagement agreement prohibiting a disclosure of information about unlawful acts in the workplace, including sexual harassment.

SB 1300 creates an exception: this restriction does not apply to negotiated settlement agreements to resolve FEHA claims filed in court, before administrative agencies, alternative dispute resolution or through the employer’s internal complaint process. The settlement agreement just has to be negotiated, voluntary, and supported by valuable consideration.

Limits Prevailing Employers’ Right to Fees and Costs. SB 1300 prohibits a prevailing defendant from being awarded attorneys’ fees and costs unless the court finds the complaint was frivolous, unreasonable, or groundless when filed; or that the plaintiff continued to litigate after it clearly became so. SB 1300 explicitly states that this provision does not apply to section 998 settlement offers.

SB 820 extends the California Code of Civil Procedure (“CCP”) and applies to both public and private employers as well as both civil and administrative actions. CCP §1002 currently prohibits provisions in settlement agreements that prevent disclosure of acts that can be prosecuted as felony sex offenses and certain sex offenses against children. SB 820 adds CCP §1001 to prohibit nondisclosure provisions in settlements involving sexual misconduct. If a settlement agreement after January 1, 2019, includes such nondisclosure provision, that provision will be void as a matter of public policy. SB 820 creates two exceptions: (1) either party can prevent the nondisclosure of the amount paid, and (2) the claimant can prevent nondisclosure of facts that would protect his or her identity, as long as a government agency or public official is not a party to the action.

AB 3109 bars settlement provisions that prevent an individual from testifying about criminal conduct or sexual harassment in court or legislative proceeding. AB 3109 makes such provision void and unenforceable.

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