“Women belong in all places where decisions are being made.” –Justice Ruth Bader Ginsburg.
On this International Women’s Day, I look at some of the new laws that went into effect this year that are directed at remedying wrongs committed against women and holes in women’s rights. While not perfect, these laws no doubt required much effort from their proponents. Many of the changes are plain common sense. Importantly, the changes demonstrate progress. Below are summaries of the main laws affecting women’s rights which went into effect this year.
SB 1343: Sexual Harassment Training Requirements. California Government Code section 12950.1 is amended to require employers with 5 or more employees to provide at least two hours of classroom or interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of such training to all nonsupervisory employees within six months of the employees’ assumption of their positions. Thereafter, employers must provide sexual harassment training to all employees every two years. The training must include practical examples aimed at teaching supervisors how to prevent harassment, discrimination, and retaliation.
The addition of all employees is only logical since employers with 5 or more employees have a duty to prevent harassment to their employees by any employee, not just supervisors.
SB 1300: Fair Employment and Housing Act amendments regarding Harassment. This bill adds Section 12923 to the Government Code, which provides:
· In a workplace harassment suit “the 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, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” Harris v. Forklift Systems (1993) 510 U.S. 17, 26 (emphasis added). In doing so, the law affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in the Harris case.
· “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence 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.” Gov’t Code 12923(b).
· (c) The existence of a hostile work environment depends upon “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.”
This means a discriminatory remark uttered by anyone and in any context in the workplace concerning the person claiming discrimination or harassment could be relevant.
· The legal standard for sexual harassment should not depend on the nature of the occupation and the fact that occupations that were known to be more sexual in the past is irrelevant. The court should not consider the frequency of sexual conduct or the existence of sexual images in the workplace unless the frequency and existence are necessary for performing the job duties.
· Harassment cases are rarely appropriate for summary judgment.
This means there are typically trial issues of material fact in harassment cases, and harassment cases should go to trial and be decided by jurors who decide such issues.
SB 1300 also adds Section 12964.5 to the Government Code and states
(a) Employers may not require employees to sign, in exchange for a raise or bonus, or as a condition of employment: (1) a release of claims under the Fair Employment and Housing Act (i.e. harassment, discrimination, retaliation) or (2) a non-disparagement agreement or documents purporting to prohibit disclosure of unlawful acts in the workplace, such as sexual harassment.
However, the above provision does not apply to negotiated settlement agreements in any forum, including courts, administrative agencies such as the DFEH or EEOC, the employer’s internal grievance procedures, and mediations.
In civil actions for claims under the Fair Employment and Housing Act, “a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”
SB 1300 is a significant new law that apparently responded to the #Metoo movement and the recent wave of sexual harassment incidents. I hope it proves to be an effective deterrent to sexual harassment in the workplace.
SB 820: Sexual Harassment Settlement Agreements: SB 820 adds section 1001 to the Code of Civil Procedure. This law provides that settlement agreements cannot require the confidentiality of facts surrounding the claims of sexual harassment, sexual assault, sex discrimination, and retaliation. However, the law does allow confidentiality of settlement amounts and, if requested by the claimant, the claimant’s identity or identifying information except if the government or a public official is a party to the settlement agreement.
AB 3109: Waivers of the Right to Testify regarding Criminal Conduct or Sexual Harassment are Unenforceable: AB 3109 adds section 1670.11 to the Civil Code. This section provides that a provision in a contract or settlement agreement is 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.
The above two are clearly aimed at ensuring sexual harassment and sexual assault are not swept under the rug.
SB 224: Expanded List of Potential Sexual Harassment Defendants. SB 224 amends Civil Code section 51.9 to expand within the elements in a cause of action for sexual harassment section a "or that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party." The bill also includes an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment.
SB 224 also amends Government Code section 12948 to make it unlawful to aid, incite, or conspire in the denial of rights created by Civil Code Section 51.9.
AB 1976: Breast Milk Expressing Private Location: AB 1976 amends Labor Code section 1031 to provide that (a) An employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a bathroom, in close proximity to the employee’s work area, for the employee to express milk in private.
This means a bathroom stall will no longer be acceptable as some employers thought.
SB 826: Women on Corporate Board of Directors: SB 826 adds Section 301.3 to the Corporations Code and provides that California publicly held corporations must have at least one female director on its board by the end of 2019. A corporation must increase its number of directors to comply with this section. Further, by the end of 2021, a corporation with six or more directors must have at least three women directors; a corporation with five directors must have at least two women directors; and a corporation with four or fewer directors must have at least one woman director.
Employers and employees alike should be aware of these laws and their ramifications.