CALIFORNIA LAW UPDATE: SB 1300 No More “One Free Grope”


California’s SB 1300 Makes It Easier to Bring Sex Harassment Claims

California is in for some changes when it comes to the laws that surround a woman’s ability to bring sexual harassment claims. SB 1300  will take effect on January 1, 2019, amending the Government Code to lower a plaintiff’s standard of proof in sexual harassment cases, and reduce the risk to a plaintiff of bringing an unsuccessful claim.

The New Year will mark the beginning of the #MeToo movement’s impact on transforming the law in California. Jerry Brown may be on his way out of office, but not before he signs a bill that will put several new laws into effect, laws that will make it much easier for California employees to be victorious when asserting sexual harassment claims.

The “One Free Grope” Standard is at an End.

Before SB 1300, sexual harassment in the workplace had to be “severe or pervasive” in order to constitute actionable conduct in California. In Brooks v City of San Mateo, the case that set the unfortunate “single incident” standard and served as a model for almost two decades, Patricia Brooks, a telephone dispatcher for the City of San Mateo, California, had her breasts forcibly groped by her coworker, senior dispatcher Steven Selvaggio, during a lengthy and inappropriate attempt to get her to have sex right then and there. Brooks immediately reported the incident and, the following day, the city placed Selvaggio on administrative leave pending an investigation. The case ultimately lost at trial, with a finding that a single incident, no matter how grotesquely inappropriate, was not “severe or pervasive” enough to support a claim under existing law.

Ironically, during the investigation into Brooks’s claims, it was discovered that Selvaggio had made similar improper advances to other female co-workers who had not reported the incidents.  An argument can certainly be made that Brooks was wrongly decided even under the old law, because the standard of “severe or pervasive” always required only that the offensive action be either severe or pervasive, and not both. In the eyes of many analysts, Selvaggio’s actions certainly appeared to be severe, even if not pervasive.

But as of January 1, 2019, a California employee who has suffered harassment will be able to succeed if he or she can meet a lower burden of proof, 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.” Most reasonable people would agree that, as in the Brooks case, constantly wondering if a co-worker might stick his hand inside your clothing and fondle your naked breast at any time might severely restrict one’s concentration.

The new law takes much of its inspiration from a U.S. Supreme Court decision, specifically the language used by Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems, 510 U.S. 17, 26 (1993).

Summary Judgment Curtailed

SB 1300 also clarifies for courts that harassment cases are rarely (if ever) appropriate for disposition on summary judgment. In rejecting two notable federal court decisions, the new California legislation makes it more difficult for employers to obtain a court decision that would toss the case out before the facts have been heard by a jury. This process of summary judgment is often used in sexual harassment claims. But SB 1300 explicitly rejects the application of the majority opinion in the Supreme Court’s decision in Harris, and instead holds that the Fair Employment & Housing Act will now apply the lower standard as set forth by Justice Ginsburg:

“‘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.’”

SB 1300 makes clear in §12923 (e) that:

Harassment cases are rarely appropriate for disposition on summary judgment. In that regard, the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper.”

A “Stray Remark” May Now be Considered Better Evidence

In 2010, the Supreme Court found in Reid v. Google Inc., 50 Cal 4th 512, that some offensive and discriminatory comments made to employees by their non-supervisory co-workers could be considered simply as “stray remarks.” Reid was an age discrimination case filed by Google employee, Brian Reid, 52, who upon being terminated, filed a lawsuit alleging that he had suffered age-related discrimination at the hands of one of his supervisors. The supervisor told Reid that his ideas were “obsolete,” that he was “too old to matter,” and that he was “slow,” “fuzzy,” “sluggish,” and he “lack[ed] energy.” In addition, other coworkers had allegedly called Reid an “old man” and an “old fuddy-duddy” and joked that his compact disc placard should be labeled “LP” instead of “CD.”

Stray Remarks

The “stray remarks doctrine” essentially assigns remarks made by non-decision making co-workers or decision making supervisors outside of the decisional process as irrelevant and thus not evidence that may be used in court to much effect. The doctrine has become a staple in federal circuit courts, resulting in some otherwise valid discrimination claims being unsuccessful.

But SB 1300 now explicitly rejects the old “stray remarks” doctrine, and instead states that a “stray remark” uttered by a non-decision maker may indeed, as of January 1, 2019, be relevant evidence of discrimination. The new law takes its inspiration from the language in the 2010 Reid decision, which noted that:

“…by discounting age-related comments as stray remarks, a court would be permitted to do what is otherwise prohibited from doing on a summary judgment motion, i.e., weigh the evidence.”

Additional Protections for Plaintiffs

SB 1300 also adds several other new protections for employees alleging harassment:

No Risk of Paying An Employer’s Attorneys Fees (FEHA):
Beginning January 1, 2019 a defendant employer will not be able to recover attorneys’ fees or costs if it prevails on a claim made under the Fair Employment and Housing Act (FEHA) (unless the claim was frivolous, unreasonable or totally without foundation). This new standard will be applied even if the plaintiff rejects a “998 offer” of settlement and fails to obtain a more favorable judgement at trial.

Restrictions on Employer Releases and Non-Disparagement Agreements:
SB 1300 also makes it an unlawful employment practice under the California Government Code for an employer, in exchange for a raise or bonus or as a condition of employment or continued employment:

▸ To require an employee to sign a release stating the employee does not possess any claim or injury against the employer or other covered entity, and include the release of a right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, law enforcement agency, court, or other governmental entity; or
▸ To require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.

The Takeaway

As of January 1, 2019, cases involving sexual harassment on the job will be stronger, will have a greater chance of really being heard, and the #MeToo movement will be well on its way to fixing a system that has been broken for decades. Women who previously were too afraid to come forward will at long last, finally have their day in court.

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