A lot has changed in the past year. Although the fight against sexual assault and sexual harassment didn’t start in October 2017—workplace harassment of any sort has been illegal since the passage of the Civil Rights Act of 1964—it appears that the original viral spread of the #MeToo marks a turning point in U.S. history. I’m not just referring to the raised awareness of the issues, but genuine legislation. Numerous state governments have already adopted regulations inspired by #MeToo. In the State of New York, for instance, sweeping new anti-harassment laws are taking effect this week.
Next up: California.
Not to be outdone by New York, Golden State lawmakers have proposed a number of measures over the past few months aimed at addressing workplace harassment, empowering alleged victims, and holding employers to greater standards of accountability. And this month, on the anniversary of the #MeToo movement (or at least the popularly recognized anniversary), Governor Jerry Brown signed not 1, not 2, but 7 anti-harassment bills into law.
Our legal partners at Fisher Phillips have provided an excellent overview of these new laws, which cover everything from non-disclosure agreements to bystander intervention training to lactation accommodations, boardroom gender quotas, and human trafficking prevention.
Expect these new laws to shake up California’s already litigious and highly-regulated legal environment. In addition to substantially altering the rights and responsibilities of employers who do business in the state, the laws contain, in the words of Fisher Phillips, “some unusual (and largely unprecedented) legislative ‘intent’ language with respect to a number of issues related to the application of workplace harassment law by the courts.” Here’s what the attorneys write about the extraordinary language in SB 1300, which they call “the Mother Of All #MeToo Bills”:
Non Disclosure Agreements – With Governor Brown’s signature on Senate Bill 820, the category of settlement agreements in which non-disclosure provisions are prohibited has now been significantly increased.
Training Requirements – Senate Bill 1343 will soon require employers with five or more employees to provide sexual harassment prevention training to both supervisory and non-supervisory employees.
‘Tangible Productivity’ – The legislation contains language affirming U.S. Supreme Court Justice Ginsburg’s concurrence in Harris v. Forklift Systems that, 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…that the harassment so altered working conditions as to make it more difficult to do the job.’
‘Single Incident Sufficient’ – The new law declares that a ‘single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment.’
Rejection Of ‘Stray Remarks Doctrine’ – The new law also affirms that the existence of a hostile work environment claims depends on the totality of the circumstances, and that a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a non-decision maker, may be relevant and circumstantial evidence of discrimination.
Legal Standard For Sexual Harassment – A provision of the new law affirms that the standard for what constitutes a valid claim for sexual harassment does not vary by the type of workplace.
Summary Judgment ‘Rarely Appropriate’ – Finally, SB 1300 declares legislative intent that harassment cases are “rarely appropriate for summary judgment” (a pretrial motion aimed at winning a case well before a jury trial).”
We’ll continue covering these new laws as more guidance and information becomes available. Make sure to subscribe to our newsletter so you don’t miss anything—because whether you operate in the state or not, where California goes… you know the rest.