Senate Bill 1300, enacted last year, is one of the California Legislature’s answer to the “Me Too” movement. The law makes several changes to the law prohibiting harassment in the workplace. These changes lower the standard required to prove unlawful harassment. They also make it easier for employees to bring claims in court.
Changes Employers Should Know
One critical element of a harassment claim is proof of “severe” or “pervasive” conduct. Senate Bill 1300’s amendments to the Fair Employment and Housing Act (FEHA) make this factor easier to establish.
For example, a single incident may be enough to establish employer liability for harassment. This is true even if the employer had no prior knowledge of misconduct by the harasser. Prior court decisions generally would not allow a harassment claim to proceed based on a single incident, unless it was particularly egregious (such as a physical assault).
A complainant also no longer needs to prove that the harassment actually interfered with his or her work or productivity, such that the conduct altered the terms and conditions of employment. Rather, it will be sufficient that harassment made it “more difficult” to perform the job. This amorphous standard will have to be interpreted by courts in years to come.
The amendments also clarify that the nature of the employer’s business or workplace is irrelevant to a finding of harassment. In other words, workplaces that may have traditionally accepted vulgar language as part of the environment (e.g., a shipyard) cannot argue that some baseline of offensive language is the norm.
Employers can no longer argue harassment claims are invalid because they are based on isolated, “stray remarks.” Isolated comments may be relevant to prove discrimination or a hostile work environment even if the remarks aren’t made by someone with the power to make decisions about a complainant’s job.
Senate Bill 1300 adds two additional challenges for employers who are defending claims in court. A new fee-shifting provision means that employers cannot recover attorneys’ fees and costs of suit unless an employee’s claim is completely frivolous. Second, the amendments state that harassment claims generally are not appropriate for dismissal through summary judgment motions.
In sum, SB 1300 makes it easier for employees to win harassment claims in court, and harder for employers to defend against them. Plaintiffs’ lawyers may choose to bring weaker claims, because the risk of liability for employers’ fees and costs will be so low. It will also be more difficult to achieve a pre-trial dismissal, putting pressure on employers to settle to avoid the risk of trial.
Strategies to Reduce Risk
As usual, preventing litigation starts with effective policies and consistent enforcement.
Anti-harassment policies should be modified to ensure they clearly explain that even single instances of conduct violate the policy.
For some employers, best practices will require addressing broader, workplace culture issues. Senate Bill 1300 clarifies that courts will no longer consider whether crude language or jokes are the norm in a particular workplace, such as traditionally male-dominated blue-collar jobs. Employers must be prepared to meet resistance from employees who are “used to” acting a certain way.
Policies and training programs should emphasize “zero tolerance.” Zero tolerance does not mean employers must fire every employee who acts unwisely. Rather, employers must take every claim seriously and take appropriate action to correct it, even if the conduct isn’t unlawful. Keep in mind that where there is smoke, there may be fire (in the form of unreported instances).
That said, given the new standards, at-will employers should consider whether retaining an employee is worth the risk of a second policy violation, and implement a consistent policy. Employers also must consider what actions they will take when an employee’s isolated instance of improper conduct is established.
Employers are obligated to prevent harassment, not just correct it once it has already occurred. Failing to prevent harassment or take effective remedial action can increase liability risk, including for punitive damages.
Employers should plan to remedy claims that have merit, even if the conduct is not ongoing or particularly severe. For example, an employee who makes an insensitive comment to a transgender employee may just need some coaching. But an employee who purposely refuses to use a transgendered employee’s preferred pronouns may merit written disciplinary action or discharge. Other remedies short of discharge may include reassigning the alleged harasser to another facility, removal of supervisory responsibilities, mandated training, or any other action designed to stop the offensive conduct. Employers also must consider whether a complainant or victim of harassment should be given time off or other considerations to help them continue in employment.
Identifying less obvious misconduct as a policy violation requires managers to be able to spot problems before they start. For this reason, pro forma, bare minimum, on-line training may be insufficient. Managers must also understand how to identify and remedy inappropriate behavior relating to protected classes other than sex (such as race, age, disability, and religion), and abusive conduct generally. Of course, if managers do not take the problem seriously, or give special leeway to high performers, no amount of training or policies will suffice.
Finally, employers need to ensure that anti-retaliation policies are well-known and taken seriously. Retaliation against victims of harassment, or their supporters, remains a major problem in the workplace, and one that frequently leads to litigation.