California employers with at least five employees must provide sexual harassment prevention training and education to all supervisory employees and non-supervisory employees in California by January 1, 2020.
Articles Discussing Sexual Harassment Claims In California.
In the wake of the #MeToo movement, many states have been making concerted efforts to address and prevent sexual harassment through proposed legislation. On July 9, California Governor Jerry Brown signed one of those proposals, Assembly Bill 2770, into law. This measure targets defamation claims stemming from sexual harassment allegations. Under the law, certain employee and employer statements regarding sexual harassment allegations are deemed privileged and therefore cannot be used to support a defamation claim.
Several significant employment law bills relating to sexual harassment are pending before the California legislature which could significantly affect employer practices.
New California Fair Employment and Housing Act regulations that went into effect April 1, 2016, requiring employers to have a discrimination, harassment, retaliation, and prevention policy also set new benchmarks for mandatory sexual harassment training procedures.
California’s Fair Employment and Housing Council ("FEHC") has adopted new regulations under the Fair Employment and Housing Act ("FEHA") that take effect April 1. For the most part, the new regulations reflect recent changes in the law (e.g. making clear that FEHA protects interns and volunteers and persons providing services pursuant to a contract). However, the new regulations contain an important new substantive requirement that employers adopt a written discrimination, harassment, and retaliation prevention policy that meets specified requirements. According to the FEHC, this new policy requirement is in furtherance of employers’ obligation to prevent (and not just correct) discrimination, harassment, and retaliation in the workplace, and is in addition to employers’ existing obligation to provide its workforce with a copy of the DFEH brochure on sexual harassment (DFEH-185) and/or an alternative anti-harassment policy that complies with Government Code section 12950.
New California regulations declaring that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by” the California Fair Employment and Housing Act and that “[e]mployers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct” will go into effect on April 1, 2016.
An employer cannot be held liable for failure to prevent sexual harassment under the California Fair Employment and Housing Act (“FEHA”) if there is no actionable sexual harassment, the California Court of Appeal has ruled. Dickson v. Burke Williams, Inc., No. B253154 (Cal. Ct. App. Mar. 6, 2015). Likewise, a jury’s finding that an employer is not liable for sex discrimination precludes liability for failure to prevent discrimination.
An amendment to the California Farm Labor Contractor Act requires that farm labor contractors participate in at least one hour of sexual harassment prevention training each year. In addition, the amendment requires that an applicant for licensure as a farm labor contractor execute a written statement attesting that the contractor’s members of management have been trained in the prevention of sexual harassment.
Employers subject to California’s mandatory “AB 1825” sexual harassment training requirement for supervisors will need to revise their programs to include prevention of “abusive conduct,” following an amendment (AB 2053) to California’s Fair Employment and Housing Act (FEHA).
A franchisor could not be held vicariously liable under the California Fair Employment and Housing Act (“FEHA”) for alleged sexual harassment in the franchisee’s workplace in the absence of evidence establishing the franchisor “retained or assumed a general right of control” over employment decisions and the “day-to-day aspects of the workplace behavior of the franchisee’s employees,” the California Supreme Court has ruled, 4-3. Patterson v. Domino’s Pizza, LLC, No. S204543 (Cal. Aug. 28, 2014). Accordingly, the Supreme Court reversed the Court of Appeal’s decision and reinstated summary judgment in the franchisor’s favor.
Finding an intern had produced sufficient evidence for a reasonable jury to conclude his supervisor engaged in a pervasive pattern of harassing conduct “because of sex,” including numerous gifts, frequent lunch purchases, along with sexual jokes and displays of pornographic computer images, the California Court of Appeal has allowed his harassment suit to proceed, reversing a lower court’s summary judgment against the plaintiff. Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014). The Court further found the trial court erred in excluding evidence of the alleged harassment in the intern’s retaliation claim against the City of Benicia and ordered a retrial on the retaliation claim.
California Governor Jerry Brown has signed into law a revision to the definition of sexual harassment under the California Fair Employment and Housing Act to make clear that employees who assert claims of sexual harassment need not show the harassment is motivated by sexual desire. The new law becomes effective on January 1, 2014.
The deadline for training under AB 1825, the California law designed to instruct supervisory employees and managers in the prevention of sexual harassment at the worksite, is December 31, 2013.
Minor inconsistencies in witness testimony need not render a plaintiff-employeeâ€™s account of sexual harassment so â€œinherently improbableâ€ as to require reversal of the juryâ€™s verdict, the California Court of Appeal has held. The Court thus affirmed judgment in favor of the employee in a sexual harassment case.
The California Court of Appeal has held that judgment for an employer is proper under California law where the plaintiff failed to present sufficient evidence that she was subjected to severe or pervasive workplace harassment based on her gender. Brennan v. Townsend & O’Leary Enterprises, Inc., No. G042398 (Cal. Ct. App. Oct. 18, 2010). Accordingly, the Court affirmed judgment notwithstanding the verdict in favor of the employer.