New Era: The End of Forced Arbitration Agreements for Sexual Harassment and Assault Victims

Written By Christopher B. Dolan and Vanessa C. Deniston

This week’s question comes from Jessica R., who asks: I’ve been working at a big tech company in the South Bay for about three years now as a software developer. At the outset of my employment, I signed several documents contained in a hiring packet, one of which was an arbitration agreement. I didn’t understand what it was at the time. I just signed it because I thought that’s what I had to do to start work. After some research, I now realize I gave up my right to file a civil case, and any claim arising from my employment will be handled confidentially out of court. A few weeks ago, one of the newly hired managers began making inappropriate sexual remarks to me and one of my co-workers. The behavior has only gotten worse. HR doesn’t seem to take it seriously, either. I’m starting to regret ever having signed that arbitration agreement. Do I have any options, or am I going to be stuck with it? 

Hi Jessica,

Thank you for your question. We have some excellent news for you. Last month, on March 3, 2022, President Biden signed H.R. 4445 into law, ending forced arbitration of all claims of sexual assault and sexual harassment arising under federal and state law. The law is effective immediately nationwide. It applies to all past and future agreements, including arbitration agreements signed before the new law went into effect. 

The new law applies to any “dispute or claim that accrues on or after the date of the enactment of this Act.” Does a claim “arise” or “accrue” when the actionable conduct occurs or when a case is actually filed? It is unclear. Given the law is so new, its interpretation, thus far, has been limited. There is likely to be a wave of test cases over the next six months, however, seeking to further clarify the applicability of the new law to acts of sexual harassment and assault that occurred before March 3, 2022, and how cases involving sexual harassment and sexual assault occurring before, on, and after March 3, 2022, are to be treated. 

What does this mean for you and your circumstances?

  1. First, the arbitration agreement you signed when you were hired by the company three years ago appears to be covered under this new law.
  2. Second, the new law will likely apply to your claims as the sexual harassment your supervisor subjected you to appears recent – post-dating March 3, 2022 – and ongoing, which removes some doubt regarding the Act’s applicability to your claims.

Does this Act completely prohibit the arbitration of these types of claims?

No. Depending on the circumstances, an employee that previously signed an arbitration agreement may still wish to avail themselves of the arbitration process. The confidential nature of arbitration may appeal to some employees who don’t wish to have their names publicly associated with embarrassing or explicit sexual harassment or assault details.  This law places the power in the hands of the victim to choose which forum they prefer. Thus, should you decide to pursue legal action, you may, at your election, choose which forum you prefer, whether it be arbitration or civil court. If you choose to file sexual harassment claims in civil court against your employer and your supervisor, your employer is unlikely to be successful in compelling you to arbitration, despite your former agreement with them to do so.

Now, for the curveball. As the law is brand new in its application, it is less clear at present how cases will be handled that involve a mix of different claims, one or more of which involve sexual assault or harassment. Suppose for instance, you wish to bring a sexual harassment claim and claims for wage and hour violations. The law is silent on whether the wage and hour violations will be compelled to arbitration. Forcing a victim to pursue two related claims arising out of their employment in two separate forums is neither practical nor a cost-efficient option for them. Time will bear out how such cases will be handled. 

One final note for those of you out there that don’t fall squarely within the protections offered by new law. If you do end up in arbitration, there are some further protections for you as a Californian. On January 1, 2019, Senate Bill 820 known as the Stand Together Against Non-Disclosure (STAND) Act became law, prohibiting settlement agreements designed to silence employees from sharing factual information about their experiences of sexual harassment or sexual assault in the workplace. This law also applies to settlement agreements that contain a non-disparagement provision. Thus, despite the confidential forum of arbitration, if a settlement is reached prior to the hearing, your former employer cannot prevent you from discussing about what happened to you. Since 2019, the California legislature has taken it a step further. On January 1, 2022, Senate Bill 331 known as the Silenced No More Act was signed into law, expanding the prohibition to all claims of harassment, discrimination and retaliation under the Fair Employment and Housing Act (FEHA), including claims based on race, sexual orientation, disability, and many others. 

If you or someone you know has signed an arbitration agreement and experienced harassment, discrimination, or retaliation in the workplace based on their membership in a protected class under FEHA, contact an attorney such as the Dolan Law Firm to analyze your particular circumstances. 

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Reporting sexual harassment in the gig economy

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars.
Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. 

This week’s question comes from K, who asks:

Q:“I am female and I work at events that are staffed by Instawork, Wonolo and other gig agencies. We get gigs through these companies to work at various events. One of these events was being catered by a very famous gourmet company [name withheld]. The catering companies contact Instawork and Wonolo to send workers to provide bartender and waitstaff. Some of the gig workers provided by these companies are sexually harassing myself and other female workers by pawing into us. They usually walk up behind me and put their hands on the flat of my back, or down lower towards my butt. One grabbed my arm from behind. Some give you a pat on the back right where your bra is fastened. Sometimes, they brush against me in ways that are unwanted and inappropriate. This is happening not only to me, it is also happening to other women. It is sexually suggestive and doesn’t happen to the men.
I have reported this to the catering company. They say it is not their problem and that I need to contact Instawork. I have tried to make an anonymous complaint to Instawork but couldn’t get through without giving my name. I am afraid if I tell them they won’t send me to gigs anymore.
There is no clear reporting mechanism, a lack of sufficient training on harassment and discrimination, and little or no supervision by the companies who send you the jobs or the companies where you work. I have been putting up with this for years, and I am fed up. Can you write in your column what the law is so I can send it to the companies?”

A: Dear K, the emergence of the gig economy has led to an upswing of complaints such as yours. These companies believe that they owe their “gig labor force” none of the protections which cover full-time employees. Sometimes this is the result of ignorance, sometimes it is the result of the gig employers just not giving a damn about their labor force.

Sexual harassment can include verbal statements, comments, jokes, written comments, emails, “dick pics,” touching, inappropriate physical presence (sitting on a desk with crotch inches from the face, blocking freedom of movement, etc.) and other unwanted conduct. The key is that the conduct is unwanted and has its basis in sexual connotation or abuse of power.

Under California Government Code Section 12940(a) conduct arises to the level of sexual harassment “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” It suffices to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so much as to make it more difficult to do the job.

Section (b) of 12940 states that even a single incident of severe harassing conduct is enough to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. “The existence of a hostile work environment depends upon the totality of the circumstances . . . and the legal standard for sexual harassment should not vary by type of workplace.” 12940(c)&(d).

Pursuant to Section (j)(1), “harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employer . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

A person “providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. It is also illegal to retaliate against anyone making a complaint. Our firm has recovered hundreds of millions in discrimination, harassment and retaliation cases.

Send both the “gig” employer and the catering company a copy of this letter and hopefully they will take appropriate action. Make a paper trial so you can prove it was delivered. If they continue to ignore your rights, contact a good trial lawyer to take action on your behalf.

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Los Angeles Sexual Harassment Lawyer

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Los Angeles is a high-powered city full of ambitious people. Because of this fast-paced environment, sometimes individuals will take liberties they are not permitted to take – or it may appear that such acts are intentional when they are not. Either way, it can be frightening and enraging if sexual harassment happens to you. It is important, even critical, to understand that you do not have to experience it alone. You deserve better than to be mistreated, and a good sexual harassment lawyer in LA can help you seek justice.

Two Types

While most women and many men are aware that sexual harassment may occur anywhere, it is by far the most common in the workplace. There are two types of behavior documented by relevant authorities that qualify under the relevant laws as sexual harassment: quid pro quo and hostile work environment.

Quid pro quo sexual harassment is the classic offer of some advancement or assistance in return for sexual favors by one individual to another. Because this behavior is so exploitative, it is punished harshly when it is proven to be going on – unlike in many other states, California law makes an employer strictly liable for the sexual harassment of its employee, which means they cannot defend against it. Strict liability is defined as when liability is imposed on a person without requiring a finding of fault, meaning that one does not have to be proven to have abrogated that duty of care in order to be found liable.

Hostile work environment sexual harassment, by contrast, is when conduct by one or more people is so intimidating and unpleasant that it rises to the level of harassment, with a sexual edge to alleged teasing or physical interactions. The key words in the statute that can make an employer liable are “severe or pervasive” – or, not and, meaning that the burden of proof the plaintiff must meet to show harassment is lower than it might be in other states where “severe and pervasive” is the standard. Also, California law holds that the person filing the claim need not have been the specific target of the harassment in order to have a cause of action.

Gender Is Irrelevant To Harassment Claims

It is important to keep in mind that by law, gender is irrelevant in terms of feeling sexually harassed or making harassment claims. Multiple California institutions from the entertainment industry to the state capitol have been touched by sexual harassment claims in recent years, and given the widespread nature of the claims and social phenomena like the #MeToo movement, more and more men are coming forward, both under California and federal law.

Historically men were somewhat discouraged from filing harassment claims, fearing being perceived as weak or incompetent. However, more and more men are filing in this day and age, against both male and female harassers. The Equal Employment Opportunity Commission (EEOC) in particular has documented an increase in male plaintiffs in sexual harassment cases since 2010, with between 16 and 18 percent of sexual harassment claims being filed by men, up from single digits in the early 2000s.

California Law or Federal Law?

Despite the noted uptick in harassment claims being filed with the EEOC, filing in California is a better bet for many plaintiffs, and understanding which statute to file under can be an important part of moving forward with your case. There are different standards at play under each law. For example, Title VII of the federal Civil Rights Act of 1964 has been interpreted to hold that in order to hold an employer liable for hostile work environment sexual harassment when the employer has not taken any detrimental employment action (in other words, in order to hold your boss liable for sexual harassment even if you have not been disciplined or demoted for your report), (1) the employer must not have taken any reasonable steps to curb harassing behavior or prevent it in the first place; and (2) the employee must have “unreasonably” failed to work with the employer to prevent the behavior.

California law, by comparison, does not demand any action on the employee’s part to work with the employer regarding the behavior before filing suit. In some ways this can help the employee, because a person who has been harassed may sometimes not take steps to discuss the behavior with their employer due to fear of retaliation or disbelief. They may decide at first to ignore the behavior, only to change their mind later, and under federal law, they would conceivably be denied in court because they did not immediately speak up. California law does not have this requirement.

Training Is Required

One variation in California’s law that the average employee should keep in mind is that the Department of Fair Employment & Housing (DFEH) requires employers with at least 50 full or part time employees and/or independent contractors must provide at least two hours of sexual harassment training to all supervisory employees every two years. The training must be fairly comprehensive, covering both federal and state law, and include at least some discussion on how to handle claims, both true and false. If an employer does not offer this training, they may be cited, and while it is not probative, it is a persuasive showing if one is trying to establish a workplace culture as being uninterested or disengaged from sexual harassment issues.

Don’t Delay – Call Our Los Angeles Sexual Harassment Lawyers Today

Sexual harassment has become a hotly debated topic in this age of the #MeToo movement, but it cannot be debated that being harassed on the job is something no worker should ever have to endure. Our Los Angeles sexual harassment lawyers have been recognized for their work for other clients, both in terms of excellence and in terms of compassion, which is what victims of such treatment so often need. We have 15 attorneys in our firm, each of whom understands that justice and closure are paramount in what you need.

You can schedule a free case review with us by calling our offices today at 415-360-1766 or by using our web form. We work on a contingency basis, meaning that if you do not succeed in your suit, you owe no fees. Contact us today.

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Sexual Harassment Attorney San Francisco

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Harassment is unwelcome conduct of an unlawful nature. If the conduct is so severe or frequent that it affects the injured party’s ability to do her or his job, this is called a “hostile work environment.” Harassment can include unwanted sexual advances, jokes, inappropriate touching, or it can be visual, such as inappropriate photographs in the workplace.  

At the Dolan Law Firm, we have handled many sexual harassment claims. If you experienced any unwanted acts especially in the workplace, contact us today for a free consultation: 415-421-2800.

Have You Been Harassed At Work?

Harassment can take many forms.

  • When a supervisor, manager or employer demands sex in return for a raise, continued employment or promotion, this is one form of sexual harassment;
  • Off-color jokes, pin-up photographs of naked men or women, internet pornography on work computers and unwanted touching are all other examples of sexual harassment;
  • Racial slurs and race based jokes  are another example of harassment.

The law allows someone in a protected class (age, sex, disability, race, sexual orientation) to sue a harasser as well as the company/employer. If you have suffered from sexual harassment or any other kind of harassment in the workplace, contact the San Francisco harassment attorneys at the Dolan Law Firm online or by calling 415-421-2800. We are here to protect your rights in the workplace.

Experienced Employment Lawyers with One Of the Largest Verdicts on Record

Harassment attorney Christopher Dolan and the Dolan Law Firm obtained one of the largest recorded verdict in employment discrimination in the U.S. We won a verdict of $62 million for two Arab-American employees who suffered discrimination and harassment at FedEx Ground.

When the Dolan Law Firm agrees to take your case on, we will handle it with skill, care, and compassion. Mr. Dolan was chosen California Employment Lawyer of the Year by California Lawyer Magazine. We were selected as Best in the Bay by San Francisco Gate and named one of the Top 100 Lawyers in Northern California.

Can a Company be Sued for Harassment?

Under California law, an employer is obligated to take all steps necessary to prevent harassment. Usually, this involves having a corporate anti-discrimination policy, a harassment policy, and supervisor training. If an employer does not have a policy or program to prevent harassment, it may be held liable for failing to take steps to prevent harassment.

If an employee WHO IS NOT A SUPERVISOR engages in harassment, the company must have actual knowledge of the harassment before it can be held liable for damages. In such situations, the conduct must be so open and obvious that the company should have known about it.

On the other hand, if the employee reported the harassing conduct to a supervisor and then it happened again, the company can be held liable for damages. The company should have taken prompt and sufficient action to stop further harassment. If nothing was done or if too little was done, the company becomes liable for the conduct of its employees.

If the employee IS A SUPERVISOR, MANAGER, OWNER, DIRECTOR or OFFICER of the company, the company is automatically liable for harassment. That is because the company’s eyes and ears are its supervisors and managers. If they engage in unlawful conduct, it is presumed that the company knows about it.

What to Do if You Are Being Harassed

Many companies have a reporting structure in place for complaints of discrimination and/or harassment. Look in your employee handbook or at the company’s sexual harassment policy (if there is one) to see who is designated to receive complaints.

Follow your company’s reporting requirements whenever possible. If the harasser is the one you should be reporting to, report it to HR or the harasser’s supervisor.

ANY REPORTS SHOULD BE IN WRITING and you should keep a copy for yourself. Keep notes of whom you spoke to, when and what was said. Identify any witnesses.

If the harassment is so severe or physically dangerous that no reasonable person would consider continuing working there, then you may quit. This is called “constructive termination” and you can seek damages for lost wages.

However, employees cannot quit and sue after a single incident of harassment. Employees are expected to use all available means to resolve their employment issue. Only if that fails and the harassing behavior continues can the employee quit and seek compensation.

The law protects people from being retaliated against for exercising their rights in the workplace, including the right to not be exposed to harassment.

Do You Know Someone Who is a Victim of Workplace Sexual Harassment?

Often, it is hard for others to speak up. Sometimes employees do not understand that what they experience is a form of sexual harassment. Sexual harassment can occur in any situation. For example, if there are several people around and they seem to condone the inappropriate jokes of a colleague, this may feel like acceptable behavior. However, this is not the case. This type of situation may cause people who have suffered sexual harassment to feel unworthy and scared to share their stories. 

What they need to know is that sexual harassment is inadmissible and that it is possible to file a sexual harassment claim against the perpetrator. Sexual harassment can have long-term effects on someone’s psychological state, and it is important that all types of this conduct are reported.

If your colleague shares with you that they have experienced sexual harassment in the workplace, talk to them about the situation and provide them with the information we have provided you. It is important to note that sexual harassment can be either physical or verbal. Such examples may include lewd and/or sexually explicit comments and/or unwanted touching. If you or someone you know has experienced any form of sexual harassment, you may call upon an experienced lawyer so that they can provide you with the necessary resources on how to deal with these unlawful acts.

Filing a Harassment Complaint

In California, if you have suffered harassment based upon your membership in a protected class (such as age, race, sexual orientation, gender, disability, etc.), it is a violation of your rights under the Fair Employment and Housing Act. 

Before you bring a lawsuit, you must first file a complaint with the Department of Fair Employment and Housing (DFEH), generally within one year of the incident, to pursue legal action. You must file a complaint before you can file a lawsuit. 

If you need assistance in doing so, contact us for a free consultation so we can guide you through the process. With many years of experience, we know how to defend those who have suffered sexual harassment, no matter the situation. Our sexual harassment lawyers in San Francisco are here for you and will do whatever it takes to protect you. For more information, listen to the clients we have helped!

Contact our Harassment Lawyers

If you have suffered from acts of harassment or discrimination because of your gender, sexual orientation, age or contractor status, the employment attorneys at the Dolan Law Firm are dedicated to helping you. Whether you have been subjected to verbal or physical harassment, our sexual harassment lawyers can help. 

We know that reporting sexual harassment may have consequences, which is why we will do everything we can to protect you. If your employer fails to investigate your claim and your situation has been left unchanged, contact us online or call 415-421-2800 for a free case evaluation.

Frequently Asked Questions

 

What types of discrimination cases can an experienced San Francisco attorney handle?

Workplace harassment comes in many different forms, including:

  • Racial Discrimination;
  • Age Discrimination;
  • Gender Discrimination;
  • Disability Discrimination.

Law firms across the San Francisco Bay Area can assist you with your claim, ensuring people who suffered harassment are protected and that they receive justice. No matter the situation, if you are made uncomfortable at work, especially by upper management, there are state laws in place to protect you. Contact us today if you had or are currently experiencing any type of workplace harassment and we will pair you with a sexual harassment attorney in San Francisco from the Dolan Law Firm.

Can a sexual harassment attorney in San Francisco help me use the Civil Rights Act to win my case?

The Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex, or national origin. This act is widely cited as protection against unlawful discrimination during the hiring process on the basis of sex, gender, and race. A sexual harassment attorney in San Francisco can fight your fair employment claim by instilling Title VII in The Civil Rights Act to ensure you are appropriately compensated for your traumatic experience. Contact us today so we can advocate on your behalf!

How can a sexual harassment attorney in San Francisco fight illegal quid pro quo?

Quid pro quo is a Latin term that means “something for something.” It refers to a favor or advantage in exchange for gifts, sexual favors, or something else. If you have been offered goods or services unethically and you feel that your job is at risk, a sexual harassment attorney in San Francisco can protect you and fight for your rights. Quid pro quo sexual harassment is unfair and demeans individuals who are trying to achieve higher roles in their company. If you have ever experienced illegal quid pro quo, call an employment law attorney or sexual harassment attorney. People who have suffered sexual or workplace harassment deserve to be heard and should be entitled to a fair settlement. 

What type of legal advice can I receive from a sexual harassment attorney in San Francisco?

A sexual harassment attorney is not just skilled in harassment claims, but can also give advice on privacy policy adherence, federal law, severe or pervasive stalking, offensive online rhetoric, and more. Name your injustice and an attorney can either help you or direct you toward a trusted colleague who can. If you are in need of assistance, call upon the Dolan Law Firm to learn more about your legal options.

 

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Sexual Harassment Against Women In Tech: Why & What Can Be Done To Stop It

Uber headquarters sexual harassment charged

Maria from San Francisco writes: “Chris, Susan Fowler’s account of her harassment at Uber seems far too typical of what women in tech experience. Why is it that so many women in tech are discriminated against? What should we do?”

Thank you, Maria, for your timely question. For those not aware, on February 19, 2017, Susan Fowler alleged in a detailed and lengthy account on her personal blog that she had been discriminated against and sexually harassed by her direct supervisor when she worked as a software engineer at Uber.

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An overview of workplace sexual harassment in California

workplace-harrasmentsm

A few spoken words, a touch or a glance may seem good-natured to some, but can make others feel uncomfortable in the workplace. However, state and federal laws offer workers certain protections, including defense against sexually forward behavior. Under California state law, employers must take certain steps, at minimum, to provide workplaces that are free of sexual harassment. Despite laws and programs aimed at preventing this type of behavior, some people are still harassed in the workplace. Having an understanding of what constitutes sexual harassment may help workers to know if an uncomfortable situation is actually a violation of their rights.

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New state laws expand workplace protections against sexual harassment

Ava G from The Haight asks: “I heard that there were some new laws on sexual harassment. As a member of a women’s empowerment group I was wondering if you could summarize them so we can discuss them at our next monthly meeting.”

Ava, the #MeToo movement started, and continues to run strong, in California. Over the next several weeks I will report on many of the new, progressive, laws extending important protections to California workers. As you have heard, the California Legislature and Governor Newsom have acted decisively in broadening California’s workplace protections in the areas of sexual harassment. As the owner of a law firm which has represented employees (only) in cases of harassment and discrimination over the last 25 years, I can say confidently that these new laws provide much needed additional protection for workers in California.

Former Gov. Jerry Brown signed two important measures into law on Sept. 30, 2018. Senate Bill 1300, propounded by Senator Jackson and codified as Government Code Section 12923, added a host of new employee protections. The law, with certain exceptions, prohibits an employer from conditioning continued employment, or incentives like raises or bonuses, on the execution of a release of a claim or right under the Fair Employment and Housing Act (FEHA), a nondisparagement agreement (an agreement that prevents the employee from disclosing truthful facts that may be negative), or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The law further provides that any such agreement or document containing such a clause is unenforceable. In addition, SB 1300 extends the previous FEHA requirement that employers protect their employees from sexual harassment by non-employees to require protection from all forms of harassment on the basis of membership in a protected class, race, age, disability, sexual orientation, gender identification, etc.

SB 820, propounded by Senator Leyva and now codified in the California Civil Code Section 1001, renders unlawful any settlement agreement including a confidentiality provision that prevents the disclosure of factual information pertaining to civil or administrative complaints of sexual assault, sexual harassment, or workplace harassment or discrimination based on sex. The law provides that any such provision in a settlement agreement entered into on or after Jan. 1, 2019 is unenforceable. The law does permit a provision, however, that would safeguard, at the claimant’s request, the claimant’s identity and any facts that could lead one to discover the claimant’s identity (except in matters involving a government agency or public official), as well as a provision that prevents the disclosure of the amount paid to settle the claim, at the request of either party.

On Oct. 10, Gov. Newsom signed into law Assembly Bill 9, propounded by Assembly Member Reyes, which extends the time for an employee to file a complaint with the Department of Fair Employment and Housing, a prerequisite for the employee to file a lawsuit or, at the employee’s request, for the Department to conduct an investigation and prosecution of the claim within the administrative system. Until now, employees have been required to file a charge of discrimination or harassment (retaliation or other unlawful conduct) with the Department of Fair Employment and Housing within one year in order to preserve their right to sue their employer for unlawful harassment or discrimination. AB 9 amends Government Code section 12960 to extend the time that an employee has to file a complaint of discrimination and harassment by two years. Now aggrieved employees have up to three years to file a claim and initiate legal action. Moreover, certain additional extensions of time may be granted if the conduct is discovered after the expiration of the three-year period or the aggrieved party finds out the true identity of the unlawful actor.

Although these periods have been extended, it is always best to act promptly when dealing with these matters as documents disappear, memories “fade,” witnesses change jobs and frequently move, making the accumulation of evidence more difficult. It is also important to note that AB 9 is a prospective law, meaning that it does not revive claims which have already expired. As always, it is advisable to consult an experienced sexual harassment attorney to ensure the best outcomes in prosecuting your claims.

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California starts year with laws targeting sexual harassment

Around this time every year, I write a series of articles on California’s new laws: laws which were passed through the legislature and signed by the Governor Jerry Brown last year, but did not come in to effect until Jan. 1, 2019. This week, I will focus on a bevy of new sexual harassment laws which owe their origins, in part, to the #MeToo movement. In response to the recent exposure of rampant sexual harassment in politics, the entertainment industry, and business, California has continued to demonstrate an aggressive and progressive agenda with the passage of major legislation supported by several key individual rights organizations, including the Consumer Attorneys of California and the California Employment Lawyers Association.

The first of these bills, Senate Bill 1300, sponsored by state Sen. Hanne Beth Jackson from the 19th Senate District, amended the Fair Employment and Housing Act (FEHA), the state statute already providing anti-discrimination and harassment protections for employees in the workplace. FEHA continues to hold employers, labor organizations, employment agencies, apprenticeship training programs, and other training programs leading to employment responsible for harassment of an employee or contractor by a supervisor or agent of the employer based on any protected classification, including race, sex, age, religious affiliation, disability, sexual orientation, or gender identity or expression. FEHA also continues holds employers responsible for harassment of employees based on protected classifications by any non-supervisory employee if the employer, its agents, or supervisors knew or should have known of the misconduct and failed to take immediate and appropriate corrective action.

However, up until now, FEHA has held an employer responsible for only sexual harassment, but not other forms of unlawful harassment based on other protected classifications, of employees by non-employees, again in circumstances where the employer, its agents, or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action. SB 1300 now extends the scope of protection from non-employee misconduct to include not only sexual harassment, but any form of unlawful harassment, i.e. based on age, race, national origin, religious affiliation, disability, sexual orientation, or gender identity or expression. The amended law further expands the pool of workers protected against non-employee harassment to interns, volunteers and contractors. An employer who fails to put a stop to such harassment that it knew of or should have known about can be sued and held liable for both financial losses and other personal harms caused to the harassed, such as anxiety, fear, and humiliation.

SB 1300 has also cracked the code of secrecy: in every case I’ve settled, whether before or after trial, in my 25 years of employment law practice, the defendant employer has demanded a “confidentiality clause” to make it a “secret settlement,” often imposing significant financial penalties for any disclosure of terms. With SB 1300 in effect, it is now illegal to condition new employment, continued employment, raises or bonuses on an employee releasing of any claim or right under FEHA, including by signing a non-disparagement agreement or other document that would deny the employee their right to disclose information about unlawful acts in the workplace.

Next, SB 224, also sponsored by state Sen. Jackson, amends the California Civil Code to expand the reach of sexual harassment claims to cover non-employment relationships. These amendments allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held themself out as being able to help the plaintiff establish a business, service, or professional relationship. The class of potential defendants under SB 224 include investors, elected officials, lobbyists, directors, and producers …. can you say Harvey Weinstein?

Finally, SB 1343, introduced by state Sen. Holly Mitchell, expands anti-harassment training requirements to cover both smaller businesses and non-supervisory employees. Previously, FEHA has required employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position and then once every two years. Upon implementation of SB 134, all employers of five or more employees must now provide at least two hours of sexual harassment training to all supervisory employees, as well as at least one hour of sexual harassment training to all nonsupervisory employees, by Jan. 1, 2020 and then once every two years thereafter.

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Supervisor Keeps Asking For Date: Is That Sexual Harassment?

sexual harassment in the workplace

Janet from the East Bay writes:  “Chris, at my firm holiday party my supervisor and I drank too much.  We were playfully teasing each other when he suddenly he took my hand, told me how sexy I looked, and kissed me on the lips.  I was stunned and didn’t reciprocate.  I became very uncomfortable and left the party.

After the party my supervisor has texted me three times on my company cell phone during work hours asking me to go out after work.  I was disturbed by his texts and, following the first one, I texted back no.  I was hoping he would stop and I have not responded to the other two texts although he has asked me to ‘give him another chance.’  Other than texting me he has not said or tried to do anything suggestive.  I’m anxious though every time I’m in the same room with him and concerned about what may happen in the New Year.  What should I do?”

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