This post was authored by Erin Kunze.
Earlier this year, members of the State Senate and Assembly introduced bills that would expand protections provided by the Fair Employment and Housing Act (“FEHA”). In its current iteration, proposed Senate Bill 1300 would alter the standard of review for harassment claims, limit the ability to summarily dismiss harassment claims, encourage “bystander” intervention training, and prohibit settlement agreements that require employees to sign “nondisparagement” clauses or (except in limited cases) release their right to pursue FEHA actions against their employers. In its current iteration, Assembly Bill 1870 would extend the statute of limitations for employees to file employment discrimination claims. Though neither of these bills has yet been signed by the Governor, and thus neither is current law, they demonstrate a growing trend to protect employees from harassment, to provide victims of harassment with time to address their claims, and to ensure that they have the opportunity to disclose information about unlawful acts.
I. Pending Senate Bill 1300
Senate Bill 1300 in an initial section describes the Legislature’s intent regarding the application of FEHA to harassment claims. In so doing, it sets forth new standards for judicial review. For example, the Legislature asserts its approval of the standard set forth by Supreme Court Justice Ruth Bader Ginsburg, that in workplace harassment suits a 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… that the harassment so altered working conditions as to make it more difficult to do the job.” In addition, the Legislature seeks to eliminate the “severe or pervasive” standard for litigating sexual harassment claims. Instead, a “single incident of harassing conduct” would be sufficient to create a triable issue regarding the existence of a hostile work environment. The existence of a hostile work environment would depend on 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.” The Legislature also asserts its intent that the legal standard for sexual harassment does not vary by type of workplace. Finally, it opines that harassment cases are “rarely appropriate for disposition on summary judgment.” If passed, this means that harassment claims should proceed to trial for fact-finding more often than not.
In addition to its assertions of legislative intent, Senate Bill 1300 empowers an employer to provide “bystander intervention training.” Such training would provide employees with information and guidance on how bystanders can recognize potentially problematic behaviors, and motivate them to take action when such behaviors are observed.
The Bill would also make it unlawful for an employer, in consideration for a raise or bonus, “or as a condition of employment or continued employment,” to require an employee to sign a release of a claim or right under FEHA, or to sign a nondisparagement agreement that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. Notably, however, it would not be unlawful for an employer to enter into a “negotiated settlement agreement” with an employee to resolve a FEHA claim that the employee either filed in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. To demonstrate that such agreement is sufficiently “negotiated,” it would have to be voluntary, deliberate, and informed, provide consideration of value (e.g. money) to the employee, and give the employee notice and an opportunity to retain an attorney unless he or she is already represented.
Senate Bill 1300 would additionally limit a prevailing defendant’s (usually an employer’s) ability to be awarded fees and costs in relation to FEHA cases. Fees and costs would only be available if a court finds that the plaintiff’s action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”
Finally, Senate Bill 1300, and its companion bill, Senate Bill 1038, create personal liability for employees who retaliate against others in connection with harassment perpetrated by the same employee.
II. Pending Assembly Bill 1870
In a further effort to expand access to FEHA, Assembly Bill 1870 seeks to extend the period (or “statute of limitations”) during which an individual can file a complaint alleging employment discrimination. Currently, under California’s Civil Code, if an individual does not file such claim within one year from the date the alleged unlawful practice occurred, the individual has no right to bring the complaint forward. If passed, Assembly Bill 1870 would extend the period to file a complaint from one to three years from the date upon which the unlawful practice allegedly occurred. This is consistent with federal laws applicable to harassment and discrimination complaints.
Notably, Senate Bill 1300 and Assembly Bill 1870 were presented to the Governor for signature earlier this month. However, he has until September 30th to sign or veto the bills. Even if the pending bills do not move forward, they certainly indicate the Legislature’s willingness to further protect workers from harassment, including broadening employees’ access to the legal system designed to prohibit such conduct.
Stay tuned for further updates on this legislation!