On October 15, 2017, Governor Jerry Brown signed into law, SB 396 (Lara). The new law requires the sexual harassment prevention training programs for employers of 50 or more employees to specifically include within their training the prevention of harassment based on gender identity, gender expression, and sexual orientation. One section of the new law specifically states that an “employer shall also provide training inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision (a). The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.” (Gov. Code §12950.1.) This is a solid clarification of the laws protecting employees from unlawful harassment California.
The section amended by the new law also states that “abusive conduct” as referred to in the law, “means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”
Hostile work environment sexual harassment is different from quid pro quo sexual harassment (which requires that job benefits were conditioned, by words or conduct, on the worker’s acceptance of the harasser’s sexual advances or conduct). In contrast, hostile work environment sexual harassment does not require the worker to show job benefits were conditioned on anything. Instead, the worker has to show only that he or she was an employee or a “person performing service pursuant to a contract” and that unlawful sexual harassment was directed at him or her and/or that he or she was aware that such harassment was being directed at other workers. In addition the worker must also show the conduct was severe or pervasive. At trial in California, the jurors deciding the case will probably receive California’s Approved Civil Jury Instructions (“CACI”), number 2521A, which should state something similar to the following (modified to fit the facts of the case):
Plaintiff (“the Worker”) claims that she was subjected to harassment based on sex or her gender while working at Defendant (“the Company”), causing a hostile or abusive work environment. To establish this claim, Worker must prove all of the following:
1. The Worker was an employee of the Company or a person providing services under a contract with the Company;
2. The Worker was subjected to unwanted harassing conduct because of sex or her gender;
3. The harassing conduct was severe or pervasive;
4. A reasonable woman in the Worker’s circumstances would have considered the work environment to be hostile or abusive;
5. The Worker considered the work environment to be hostile or abusive;
6. A supervisor engaged in the conduct or the Company or its agents knew or should have known of the conduct and failed to take immediate and appropriate corrective action;
7. The Worker was harmed; and
8. The conduct was a substantial factor in causing the Worker’s harm.
In future posts, we will explain some of the legal meaning behind some of the law’s legal terms, such as what a worker must show to prove “severe or pervasive” sexual harassment in the context of a hostile work environment claim based on sexual harassment.
Quid pro quo sexual harassment is perhaps the most well known of all the types of sexual harassment. Quid pro quo means “this for that” and this type of sexual harassment refers to a work situation in which someone with power within a company conditions a job or job benefit on the worker’s submission to sexual/romantic advances. It can also include a situation in which the person in power directs negative treatment toward the worker when the worker rejects such sexual/romantic advances. At trial in California, the jury will likely receive some form of the following jury instruction from California’s Approved Civil Jury Instructions (“CACI”), number 2520:
Quid Pro Quo Sexual Harassment—Essential Factual Elements
Plaintiff (“Worker”) claims that Defendant (“Company”), subjected her to sexual harassment. To establish her claim, Worker must prove all of the following:
1. Worker was an employee or independent contractor with Company;
2. That Harasser made unwanted sexual advances toward Worker or engaged in other unwanted verbal or physical conduct of a sexual nature toward Worker;
3. That job benefits were conditioned, by words or conduct, on Worker’s acceptance of Harasser’s sexual advances or conduct;
That employment decisions affecting Worker were made based on Worker’s acceptance or rejection of Harasser’s sexual advances or conduct;
4. That at the time of the conduct, Harasser was a supervisor or agent for Company;
5. That Worker was harmed; and
6. That the conduct of Company, was a substantial factor in causing Worker’s harm.
If the jury finds that each of these requirements are proven by a “preponderance of the evidence” (we will provide more on this concept in future posts), the jury should reach a verdict in favor of the Worker. Check back here in the future for more on legal concepts relating to sexual harassment and employment law.
Quid pro quo sexual harassment is not the only type of sexual harassment. In future posts we will distinguish quid pro quo sexual harassment from hostile work environment harassment. Check back here frequently for more on legal concepts relating to sexual harassment and employment law.
Disclaimer: The above is for informational purposes only. Because the law is constantly changing and being refined in the courts, the above statements are based on California law at the time of publication, and should not be relied upon in court. Every litigant and attorney is strongly encouraged to conduct their own independent research.
New Employment Laws in California
New Employment Laws Provide Help for Unpaid Interns
2015 brought new employment laws to California. Notably, the legislature amended the California Fair Employment and Housing Act to extend workplace protections against discrimination and harassment to unpaid interns. California’s new law now ensures that unpaid interns are protected against unlawful harassment and discrimination in the workplace as of January 1, 2015. This includes protection against harassment and discrimination based on sex, gender, sexual orientation, gender identity, race, religion, disability, and other protected categories. The new employment law provides that harassment or discrimination against any person in the selection, termination, training, or other terms or treatment of that person in an “an unpaid internship, or another limited duration program to provide unpaid work experience for that person” is “unlawful” if based on one of the identified protected bases under existing law. Prior to this law, unpaid interns apparently had no civil right to be free from such mistreatment while working.
Additionally, FEHA was amended to expand protections against discrimination based on national origin.
New Employment Laws Provide Paid Leave to Sick Workers
A new California law requires employers to provide full time employees, as well as some part-time and temporary employees, at least three paid sick days each year.
Check back here for future updates on new employment laws.
On August 15, 2006, in a sexual harassment case we recently prosecuted against El Torito and Acapulco Restaurants on behalf of three women, the Second District Court of Appeals agreed with our position that an arbitration agreement being used to deprive employees of their right to jury trial contained illegal provisions. In its unpublished opinion in this sexual harassment case against the two companies, the Court of Appeals ordered the illegal clauses stricken and severed from the agreement, but enforced the remainder of the agreement.
If you have questions about a case that you believe may involve a claim of sexual harassment, discrimination, wrongful termination, whistleblower law, or punitive damages, click here for a Free Legal Consultation.
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