By Eileen Rice

California Governor Jerry Brown recently signed into law several bills that will make it easier for workers to speak out about and sue over workplace harassment. The new laws, which take effect January 1, 2019, include a broader definition of harassment, preclude businesses from requiring workers to sign non-disparagement agreements related to sexual harassment, and make it easier for employees to pursue sexual harassment suits.

Current law and jury instructions require a plaintiff to establish that the sexual harassment was “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” California lawmakers adopted an expansive definition of sexual harassment as outlined by Justice Ruth Bader Ginsburg in her 1993 concurring opinion in Harris v. Forklift Sys. (1993) 510 U.S. 17, in which she stated harassment is discriminatory conduct that could make a reasonable person who experienced it believe that it made it harder for them to do their job.

Under the new Government Code Section 12923, the Legislature deems any type of harassment cases rarely appropriate for disposition on summary judgment because, “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 working environment.” The Legislature provides no guidance as to the necessary severity of any given “single incident of harassing conduct” to survive summary judgment, and this expansive language potentially opens the floodgates to a wave of newly actionable offenses. In addition, the new section instructs courts that the legal standard for sexual harassment “should not vary by type of workplace.”

New Government Code section 12964.5 makes it an unlawful employment practice for an employer to give workers raises or bonuses in exchange for waiving FEHA claims. Nor may employers require employees to sign any agreement that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. This section does not prohibit non-disparagement agreements as conditions of negotiated sexual harassment settlements.

We anticipate much litigation over these new laws and will brace ourselves on how the courts will enforce and interpret these statutes. It appears that moving forward, employers will have a much more difficult time adjudicating harassment claims before trial and extricating alleged individually named defendant/harassers from employment cases.

New Training Requirements

While California law has previously required harassment prevention training of two hours for supervisors of employers with 50 or more employees every two years, revisions to the law now require employers with five or more employees to provide the harassment training for supervisors. Non-supervisorial employees also must now be trained. (Government Code section 12950.)