HARASSMENT

What was the standard for harassment PRIOR TO January 1, 2019?

Prior to 2019, the law on harassment really turned on several key elements:

• “Severe and Pervasive” standard.  The plaintiff had the burden of proof to show that the harassment was “severe and pervasive” such as to alter the fundamental terms and conditions of employment
• “Stray Remarks” were not enough.  A manager or co-worker “stray remarks” aka occasional remarks, slip of the tongue, etc. were not enough evidence to prove discrimination.
• Summary Judgment was a reasonable possibility for an employer defendant with good facts using the above standards.

If the employer failed to obtain summary judgment, then they still had a second chance of winning at trial.

How was harassment defined AFTER January 1, 2019?

After 2019, the law on harassment still turned on several key elements, however the standard changed drastically:

• “Severe and Pervasive” became “Single Incident” such that a single incident of alleged harassment is likely enough to create a triable issue of fact (i.e. very unlikely summary judgment for defense)
• “Stray Remarks” became essentially “Single Remark” such that “a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.”  Cal. Gov’t Code 12923(c).
• Summary Judgment no longer really viable for the defense.  “Harassment cases are rarely appropriate for disposition on summary judgment…..hostile working environment cases involve issues “not determinable on paper.”  Cal. Gov’t Code 12923(e).

These are big changes, which in our view have the practical effect of making it easier to get to trial on harassment allegations.   By increasing the probability of a trial, the natural outcome would seem to be higher pre-filing or pre-trial settlements because it just became a lot harder for the Company to defeat a harassment claim without a trial.  Trials are expensive and risky.

What if I’m not sure I have a claim?

Since our founding, Chris Adishian and his team have represented employees in a wide range of employment related claims.

Many employees mistakenly believe that they have no valid claims because California is an “at will” state. Similarly, many employers mistakenly believe that they are litigation proof because California is an “at will” state. The truth is not so clear cut. Talk with us.

Can you represent me if I live outside the State, and am employed by a California-based company?

Yes. If you are located outside of California and the company is located inside California, we can represent you in your claims.

Can you represent me if I live in California, and am employed by an out of state company?

If you are a California resident we can represent you in your claims regardless of where the company is headquartered in the United States, or even outside the United States.

How do we contact Adishian Law?

It is easy.

Please take advantage of our FREE online case submission or call us today to start a conversation.

Contact Us