WORKPLACE LAW – SB 1300 Workplace Sexual Harassment: Changes Ahead

QUESTION: I read the last Workplace Law article about sexual harassment training for non-supervisory employees. Are there other bills recently signed by Governor Brown?

ANSWER: Governor Brown recently signed seven bills aimed at addressing the prevalence of workplace harassment. One bill, Senate Bill (SB) 1300, effective January 1, 2019, details the legislative intent behind the anti-harassment provisions of the statute, expands employee protections and employers’ obligations and potential liability under the Fair Employment and Housing Act (“FEHA”), and limits an employer’s ability to have an employee sign a release of harassment claims and to agree to nondisparagement provisions.
Legislative Intent
SB 1300 declares that workplace harassment creates a hostile environment that deprives workers of their statutory right to work in a place free of harassment and discrimination. This bill expressly provides that a “single incident of harassment is sufficient to create a triable issue 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.” SB 1300 does not change the requirement that harassment must be severe or pervasive to constitute a violation of the FEHA.
The Legislature also declared its intent that the legal standard for sexual harassment should not vary by type of workplace, stating, “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.”
Expansion of Protections
SB 1300 expands an employer’s liability for nonemployee harassment of its employees. As background, under the FEHA, employers are strictly liable for harassing conduct by supervisorial employees, and may be liable for harassing conduct by non-supervisorial employees, where the harassing conduct is based on the membership of an employee, applicant, unpaid intern or volunteer, or person providing services pursuant to a contract, in any one or more of 18 protected categories, which include, for example, sex, race, and religion. As to harassment of employees by nonemployees, currently, under the FEHA, an employer who knows or should have known of this conduct and failed to take immediate and appropriate corrective action to stop it is also liable, but only with respect to sexual harassment. However, effective January 1, 2019, SB 1300 expands employer liability for conduct of nonemployees beyond sexual harassment to include harassment based on the 17 other protected categories.
Disparagement Agreements and Releases of Claims
SB 1300 also prohibits employers from requiring employees to sign a release of claims under FEHA, such as a harassment claim, in exchange for a raise or bonus, or as a condition of employment or continued employment. This bill also prevents employers from requiring employees to sign nondisparagement agreements that prohibit employees from disclosing unlawful acts in the workplace, including sexual harassment. Any agreement or document that violates these provisions is considered contrary to public policy and unenforceable. However, this law does not apply to a negotiated settlement agreement to resolve an underlying claim filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.
These new bills highlight the importance of effective harassment prevention policies and training in the workplace.