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.

Does Sexual Harassment Include Sex?

There are two recent decisions that we believe may be very significant for Plaintiffs in wrongful termination actions, particularly gender-based claims.

In Miller v. Department of Corrections, California Supreme Court, July 18, 2005, No. 114097, the court was faced with a fact pattern wherein a prison warden promoted women who were having sex with him, but did not promote women who were not having sex with him. On those facts, the court held that the women who were NOT having sex with the warden, and were being denied promotions, had standing to sue for sexual harassment.

In Christopher v. National Education Association, 05 C.D.O.S. 799, the 9th Circuit reversed a lower court’s dismissal of an action wherein a manager was accused of “shouting, screaming foul language, invading employees personal space, and making threatening gestures,” and held that the manager may be sued for gender discrimination under Title VII of the 1964 Civil Rights Act.

When we look at these cases, in conjunction with the widely acknowledged truism that “Since 2000, California employment law has diverged from federal law even more dramatically with California law being more favorable to employees…” (Rutter, Employment Law), it begins to look very difficult for a Defendant to obtain summary judgment on a gender-related claim in Federal court, and even more difficult in the California court system. It does not take much of a logical leap to apply this same rationale to other well-settled protected classes.

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian:

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