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By: Gretchen Carner
California Governor Jerry Brown signed into law several work-related bills that will make it easier for workers to speak out about and sue over workplace sexual harassment. The new laws codify a broader definition of sexual harassment that will make it easier for workers to bring and sustain harassment allegations in California courts, and block businesses from making workers sign nondisclosure agreements when they come on board, ask for raises or settle sex harassment suits, among other things.
California Government Code Section 12940 redefines sexual harassment and amends FEHA to make harassment legally actionable if it makes it harder for workers to do their jobs. The law, which takes effect Jan. 1, 2019, also tells judges to scrutinize employers’ motions for summary judgment on harassment claims. It also blocks businesses from giving workers raises or bonuses in exchange for their waiving FEHA claims or signing NDAs and makes it harder for businesses to win fees when they beat workers’ bias suits. Government Code section 12964.5 blocks businesses from making workers sign NDAs as conditions of sexual harassment settlements.
California lawmakers adopted an expansive definition of sexual harassment as outlined by Justice Ruth Bader Ginsburg in her 1993 concurring opinion in Harris v. Forklift Sys. (1993) 510 U.S. 17, in which she said that harassment is discriminatory conduct that could make a reasonable person who experienced it believe that it made it harder for them to do their job. Section 12923 states harassment cases are “rarely appropriate for disposition on summary judgment” because a single incident of harassing conduct is sufficient to create a triable issue of fact. In addition, the new section instructs courts that the legal standard for sexual harassment “should not vary by type of workplace.”
While California law has previously required harassment prevention training of 2 hours for supervisors of employers with 50 or more employees every two years, revisions to the law now require employers with 5 OR MORE EMPLOYEES to provide the harassment training for supervisors and adds that non-supervisorial employees must now be trained. (Government Code section 12950.1.)
Brown also signed a bill enacting Corporations Code section 301.3 which is aimed at giving women more say in corporate governance by making public, California-based businesses put one woman on their board of directors by the end of 2019 and as many as three by the end of 2021. This statute will have a significant impact on dozens of public companies that have no women on their boards. For a review of this new law in more detail, please see Rebecca Smith’s upcoming blog, Women On Board.
We anticipate much litigation over these new laws and will be keeping an eye on how the courts will enforce and interpret these statutes. If you have any questions, please contact Gretchen Carner at [email protected].