Legal Update: Redefining Sexual Harassment In California

Sexual harassment law has changed significantly in California.  For employers or employees needing more information, contact us.

Area of Law:  Employment Law 
General Background:   The California legislature and courts have continued their tradition of showing a willingness to “lead” the country in many areas of law, this time with sexual harassment in the workplace.  In 2018, California passed new employment related and labor-related laws.  In this newsletter, we will highlight the key changes under the new law.  In summary, the pendulum has swung.
“Severe and Pervasive” becomes “Single incident”.
Prior law required the plaintiff (usually a woman) to establish that the conduct was “severe and pervasive.”  In practice, this became a high hurdle as courts have held that an employee “must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex, and harassment that is “occasional, isolated, sporadic, or trivial” generally fails to meet this standard.”  McCoy v. Pacific Maritime Association (App, 2 Dist. 2013)

Now California SB 1300 provides that a “single incident of harassment” may be sufficient to establish a triable claim for hostile work environment.

Previously “Stray Remarks” were not enough for Plaintiffs, now Courts may consider “Stray Remarks.”
Under prior law, the “stray remarks doctrine” empowered a court to grant summary judgment.  For example, “[u]nder the stray remarks doctrine, on summary judgment on a Fair Employment and Housing Act (FEHA) claim, a “stray” discriminatory remark that a court determines is unconnected to the adverse employment action is insufficient evidence of a discriminatory motive, as a matter of law, and may be wholly disregarded by the court. Serri v. Santa Clara University (App. 6 Dist. 2014).  “Coworker’s stray remarks, while in poor taste, did not amount to discrimination, as required to support employee’s Fair Employment and Housing Act (FEHA) action against employer alleging race discrimination, where employee conceded that she did not believe coworker was acting out of his own personal racial animus.”  Patterson v. Apple Computer, Inc. C.A. 9 (Cal.) 2007.

California SB 1300 now provides 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).    

Previously Summary Judgment was a credible option for Employers, now Summary Judgment is “rarely appropriate.”
Under prior law, an attorney defending a company could look to the “severe and pervasive” standard, and the “stray remarks doctrine” to drive discovery.  If the facts developed showed that the conduct did not meet the “severe and pervasive” (or some say “severe or pervasive”) standard, or the facts showed that there was just a “stray remark(s)”, summary judgment in the Company’s favor was a viable goal.  

California SB 1300 now makes it clear that these cases should go to trial.  “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).

What You Need to Know. 
Even some attorneys who represent only plaintiffs think that this new law may have gone too far. Yet this is the law as it currently stands. 

For plaintiffs and potential plaintiffs.  In our opinion, if you are an employee, and you believe that you have suffered sexual harassment, by all appearances your path to trial just became much easier.  What does that mean?  In practice, typically a more credible chance of going to trial means higher settlements.  However, none of these changes mean that all plaintiffs will win their cases, nor do these changes make a clearly bad case a good case.   If you or someone you know has a harassment claim, please contact us via this link:  Contact Adishian Law

For employers.  In our opinion, if you are an employer, simply put you’ve lost two good arguments to defeat the claims, and by extension, your chances of winning at summary judgment on a harassment claim are not nearly as good as they were prior to the law change. Again, what does that mean?  In practice, typically a more credible chance of going to trial means higher settlements.  However, it is not all bad news, as employers can still mount a credible defense by meeting their training obligation and by taking “immediate and appropriate corrective action” once on notice of the complaint.   Employers can take additional steps to reduce their risk, improve their defenses and mitigate the cost of litigation.


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