Acting on the momentum of the #MeToo and #TimesUp movements, California legislators have leapt into action, putting forward legislation to protect employees who have been subjected to or opposed sexual harassment. They sought to limit confidentiality and nondisparagement provisions, restrict mandatory arbitration, increase recordkeeping and training obligations, extend the statute of limitations, and create individual liability for retaliation. In June, I wrote about the importance and potential impact of these bills in Sexual Harassment Law After #MeToo: Looking to California as a Model, published in the Yale Law Journal Forum.
On September 30, 2018, Governor Brown signed into law a number of the bills aimed at addressing sexual harassment and abuse. He vetoed several others, to the disappointment of employee rights advocates. Overall, however, the new laws are cause for celebration.
Bills Signed into Law
SB 820, The Stand Together Against Non-Disclosures (STAND) Act
SB 820 prohibits confidentiality provisions in the settlement agreement of any civil or administrative action that states a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation. The law permits restrictions on disclosure of the settlement amount. An employee is entitled to request confidentiality. The STAND Act will make it more difficult for employers to support and protect serial harassers.
AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
SB 1300 is a comprehensive bill that helps combat sexual harassment in a number of ways. Among other things, it:
- Prohibits nondisparagement agreements that gag employees from disclosing information about sexual harassment and other unlawful acts (often presented to employees at the outset of their employment as a condition of employment);
- Prohibits releases of claims presented in exchange for a raise, bonus, or as a condition of continued employment;
- Holds employers liable for failing to prevent all forms of unlawful harassment by third parties, not just sexual harassment;
- Confirms that prevailing defendants are entitled to fees and costs only when the action is frivolous, notwithstanding CCP section 998. This means that an employee need not fear that if she loses her case, that she may be forced to pay the company’s legal costs;
- Declares legislative intent regarding sex harassment, including that a single incident can constitute sex harassment, even absent extreme circumstances, that an employee’s work performance need not have suffered, and that summary judgment should rarely be granted;
- Makes sexual harassment training more robust.
AB 1619 increases the statute of limitations for civil action for sexual assault of an adult to 10 years.
SB 826 requires publicly held corporations with principal executive offices in California to have at least one female on its board of directors.
SB 1343 requires employers with five or more employees to provide at least two 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.
SB 224 strengthens the Unruh Civil Rights Act, creating protections against sexual harassment by an investor, elected official, lobbyist, director, or producer. It eliminates the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship. It further makes it an unlawful practice to deny or aid, incite, or conspire in the denial of the rights created by Section 51, 51.5, 51.7, 51.9, 54, 54.1, or 54.2 of the Civil Code (including related to sexual harassment claims under the Unruh Civil Rights Act).
AB 1870, which had broad support, would have increased from one to three years the time that an employee had to file an administrative complaint with the government for harassment, discrimination, and/or retaliation.
AB 3080 would have prohibited forced arbitration and retaliation for refusing to sign away certain rights.
AB 3081 would have created a rebuttable presumption of retaliation for complaining about sexual harassment under certain circumstances.
AB 1867 would have increased recordkeeping requirements so that records of sexual harassment complaints would need to be maintained for at least five years after the last day of employment of the complainant or alleged harassed, whichever is later.
Also Worth Noting
I also wanted to bring attention to SB 1038, which was previously ordered inactive. Under the FEHA, employees can sue the people who harass them individually. However, they cannot sue them for discrimination or retaliation. This creates incentives for harassers to silence their victims so that they do not report them. This bill would have allowed individuals to be held personally liable for retaliation, as they are for harassment. Unfortunately, it did not gain the traction it needed to pass.
* * *
Photo via Office of Governor Edmund G. Brown Jr., Press Releases