Workers who’ve suffered California sexual harassment will now have a number of new state-level protections in place as of next year, including:
- An end to employer-imposed secrecy and non-disclosure agreements that silence victims and protect abusers (victims may still choose to keep their own identify protected);
- An attempt to end the so-called “one free grope” standard confirmed by the 9th Circuit federal court 18 years ago (stemming from the “severe or pervasive” legal standard set forth in California’s sexual harassment statute);
- Mandated sexual harassment training increased to twice annually for all California employees.
Los Angeles sexual harassment attorneys have been watching these efforts move down the legislative pipeline (along with a few others, including the highly-controversial AB 3080, which would have banned mandatory arbitration agreements as a condition of employment, which failed when voted by Gov. Jerry Brown). The good news the passage of these new measures at least provide a solid foundation for harassed, abused and exploited workers to have adequate means of protection and reprisal.
Each measure goes into effect on Jan. 1, 2019.
Senate Bill 82o Scraps NDAs and Secrecy in Sexual Harassment Settlements
One of the biggest legislative wins for advocates of employees and sexual harassment victims was the governor’s signature on SB 820. Los Angeles sexual harassment attorneys can explain this measure, called the STAND (Stand Together Against Non-Disclosures) Act prohibits confidentiality provisions in settlement agreements in sexual harassment, sexual assault and gender discrimination claims in California. This protection applies not just to lawsuits, but also complaints filed with the state DFEH. It also notes that while settlement sums may be kept under wraps and the identity of the claimant/ alleged victim can be concealed upon request, the identity of the alleged abuser and/or organization cannot be kept from kept from the public, nor can underlying facts about the claim.
This bill came about directly as a result of the #metoo movement and the numerous high-profile California sexual harassment and sexual abuses cases that came to light. Individuals and companies of great wealth and power (Harvey Weinstein, Bill Cosby, Roger Ailes, etc.) were able to effectively bury mountains of sexual harassment and assault claims by settling with a non-disclosure agreement as part of the contingency. (Existing California law only barred non-disclosure agreements in cases involving felony sexual assault or abuse of an elder/ dependent adult – protection that did not extend to victims of sexual harassment and non-felony sexual assault claims.) Although executives in these organizations were well aware of what was happening, they were able for years to preserve their reputation – and allow abusers to continue to prey on other unsuspecting (often young, female) employees.
Senate Bill 1300 Redraws the Lines in California Sexual Harassment Claims
Los Angeles sexual harassment attorneys took note of another important state-level reform – one that should make it easier for harassment claims to be filed and to end favorably for claimants.
SB 1300 was important in that it outright rejected a number of judicial interpretations in California sexual harassment cases. One of the most important of those was the precedent set in the 2000 case of Brooks v. San Mateo, wherein the U.S. Court of Appeals for the 9th Circuit essentially held that a single incident of harassment isn’t sufficient to establish a triable issue of fact in a sexual harassment case, which requires establishing the alleged conduct was sufficiently severe and pervasive enough to create a hostile work environment. Lawmakers held the Brooks ruling (thereafter coined the “one free grope” standard) should no longer be considered when weighing whether a claim reaches that standard. Legislators expressly stated a single incident can provide grounds for a California sexual harassment lawsuit if it unreasonably interfered with plaintiff’s work performance or created an offensive/ hostile/ intimidating work environment.
Remember despite pro-defendant attorney’s outcry on the passage of these measures and insist large companies will start going elsewhere: These haven’t ever been easy cases to win. What these new laws do is level the playing field and remove provisions that for years protected prolific abusers and sexual harassers in the workplace. We as a nation should be pushing for measures that would keep all Americans equally protected for sexual assault and harassment, not lamenting the companies flocking to states where they may have an easier time getting away with it.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Additional Resources:
SB 1300, Filed with Secretary of State Sept. 30, 2018, Effective Jan. 1, 2019, Legislative Counsel’s Digest
More Blog Entries:
California Mandatory Employee Arbitration Agreement Bill Rejected by Governor, Nov. 30, 2018, Los Angeles Sexual Harassment Lawyer Blog