California legislators seek to address sexual harassment in the #MeToo era

California legislators returned to Sacramento in January and set to work addressing issues surrounding sexual harassment. Below we summarize nine proposed bills related to sexual harassment.

Government Code

Assembly Bill (AB) 1867: mandated retention of sexual harassment records. A bill proposed by Assemblywoman Eloise Gomez Reyes (D-San Bernardino) requires that employers with 50 or more employees maintain records of employee complaints about sexual harassment for 10 years.

AB 1870: extended statute of limits for FEHA claims. A second bill sponsored by Assemblywoman Reyes extends the statute of limitations for filing a complaint alleging unlawful employment or housing practices, including sexual harassment and discrimination, under the California Fair Employment and Housing Act (FEHA) from one to three years.

Senate Bill (SB) 1038: personal liability for FEHA whistleblower violations. Senator Connie Leyva (D-San Bernardino) introduced a bill imposing personal liability on supervisors who discharge or discriminate against employees who have opposed practices prohibited by the FEHA or who have filed a complaint, testified, or assisted in any proceeding involving a FEHA violation. Currently, the FEHA imposes such liability only on employers, not on individual employees.

SB 1300: lower evidentiary threshold for FEHA violations. Senator Hannah-Beth Jackson (D-Santa Barbara) sponsored a bill that requires an individual filing an action alleging that her employer failed to take all reasonable steps to prevent harassment or discrimination to show only that she was subjected to “unwelcome” conduct, not that she was actually harassed or discriminated against. The bill would also prohibit employers from requiring employees to release claims or rights under the FEHA or sign nondisparagement agreements as a condition of employment or continued employment.

SB 1343: sexual harassment training for smaller employers. A bill sponsored by Senator Holly Mitchell (D-Los Angeles) amends the FEHA to require that employers with five or more employees provide at least two hours of sexual harassment training to all employees once every two years. Currently, the FEHA requires only employers with 50 or more employees to provide training and education on sexual harassment to all supervisory employees.

Labor Code

AB 2366: increased workplace protections for victims of sexual harassment. A bill introduced by Assemblyman Ron Bonta (D-Oakland) prohibits employers from discharging, discriminating, or retaliating against employees who are victims of sexual harassment. The bill also extends employment protections to an immediate family member of a sexual harassment victim who takes time off work to provide assistance to the victim.

AB 3081: workplace protections for victims of sexual harassment and extended statute of limitations for sexual harassment claims. A bill sponsored by Assemblywoman Lorena Gonzalez-Fletcher (D-San Diego) contains provisions comparable to those found in AB 1870, AB 2366, and SB 1343. The bill prohibits employers from discharging or discriminating against employees because of their status as victims of sexual harassment, extends the statute of limitations for filing a complaint with the California Department of Fair Employment and Housing to three years, and requires employers with more than 25 employees to train their employees in identifying, preventing, and reporting sexual harassment. The bill also establishes a rebuttable presumption of unlawful retaliation if an employer takes action against an employee within 90 days of the filing of a sexual harassment claim.

Code of Civil Procedure

SB 820: settlement agreements that prevent disclosure of claims of sexual assault or sexual harassment. A second bill sponsored by Senator Leyva provides that settlement agreements may not prevent the disclosure of information related to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex unless the claimant requests that such a provision be included in the settlement.

Government Claims Act

AB 1750: elected officials’ reimbursement of sexual harassment settlements. Assemblyman Kevin McCarty (D-Sacramento) introduced a bill that expresses the legislature’s intent to require elected officials to reimburse public entities that settle harassment claims. Currently, there is no requirement that officers or employees reimburse public entities for government claims settled on their behalf.

Bottom Line

While it’s impossible to say which, if any, of the bills proposed thus far will emerge from committee, it’s highly likely that some aspects of the recently introduced bills addressing sexual harassment will ultimately be adopted by the California Assembly and Senate.

For further information, please contact:

Jon Holtzman

Jon Holtzman
jholtzman@publiclawgroup.com
415.848.7235

2018-08-24T16:20:50-07:00April 23rd, 2018|