11/20/1019 Blog Post #42
Significant Changes in California Law Provides New Rights to Sexual Harassment Victims
The California legislature has dramatically revised laws pertaining to sexual harassment in the workplace. As of 2019, anybody who has suffered any form of sexual harassment at work—even if there was only one incident—should consult with an attorney qualified to handle this type of case. These major provisions are codified in California Government Code Sections 12923 and 12964.5 as amendments to the Fair Employment and Housing Act (FEHA) and became law in January of 2019. Here are some of the most significant changes that strengthen the legal rights of sexual harassment victims:
1. A Single Incident of Harassment Is Enough to Create a Triable Issue of Fact Regarding Hostile Work Environment.
Pre-2019, the law required an employee/victim to prove a pattern of “severe or pervasive” harassment. Cal. Govt. Code section 12923(b) now states that 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 work environment.” As such, only one instance of harassment is enough to trigger these statutory protections and allow a victim-employee to pursue legal action.
2. There is Much Lower Burden of Proof for a Victim of Sexual Harassment to Prevail
Cal. Govt. Code Section 12923(b) outlines the appropriate standard and burden of proof that Courts must follow when deciding sexual harassment legal issues. The legislature expressly adopts the “hostile environment” guidelines set forth in Justice Ruth Bader Ginsburg’s concurring opinion in Harris v. Forklift Systems, 510 U.S 17 (1993), which holds 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, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” In other words, the victim must only prove that the harassing conduct objectively made the working conditions more burdensome—not that the victim’s work performance actually diminished in quality.
3. Employers Will Face Increased Difficulty when Defending these Claims
As codified in Cal. Govt. Code Section 12923(c), the legislature has determined that sexual harassment cases are rarely suitable to be dismissed via use of a summary judgment motion: “Cases involving issues surrounding hostile working environments are not capable of being determined on paper.” In other words, it will be increasingly difficult for employers to obtain a pre-trial dismissal of the Complaint. The plaintiff’s right to have a jury determine the facts in the case is thereby protected.
4. Non-disparagement Agreements Are Now Unlawful
Govt. Code Section 12964.5 now forbids employers from requiring their victim-employees from entering into releases and agreements that preclude the victim from disclosing information about the unlawful acts in the workplace (including harassment claims) in “exchange for a raise or bonus, or as a condition of employment or continued employment.” Now, if victims decide to resolve their harassment claims outside of court, they will not be mandated to keep the harassment secret.
5. Conclusion
In light of these changes, all California employees should be aware that these newly enacted laws offer expanded rights to achieve justice after being victims of sexual harassment.
The Zwerdling Law Firm, LLP strongly believes in protecting the rights of employees who are the victims of sexual harassment. There is no place for this type of abuse in the workplace.