California Redefines Sexual Harassment

October 05, 2018

California Governor Jerry Brown (D) signed far-reaching legislation, effective January 1, 2019, that will change the way sexual harassment claims are litigated in the state, while vetoing measures that would have banned arbitration agreements and extended the statute of limitations for harassment claims.

Workers can sue for a single incident of harassment.  Under SB 1300, one event can be grounds for legal action “if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”

SB 1300 also declares summary judgment is rarely appropriate for harassment cases.

Expanded harassment liability: Until now, California employers have been only responsible for sexual harassment committed by nonemployees if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.  SB 1300 eliminates the limitation on this potential liability.

New restrictions on non-disclosure agreements:  Gov. Brown also signed SB 820, which prohibits NDAs in settlement agreements related to a claim filed in civil court or with an administrative agency for sexual harassment.

  • NDAs are still allowed, however, in settlements at the request of the claimant.

Expanded training requirements:   Employers must provide provide two hours of sexual harassment training to both supervisory and non-supervisory employees by 2020 under SB 1343, which the governor also signed.

However, Gov. Brown vetoed a measure that would have extended the statute of limitations for harassment claims brought under the California Fair Employment and Housing Act from the current one year to three years.  According to the governor, the one-year deadline, which has been in place since 1963, encourages prompt resolution of claims while memories are fresh, and ensures that unwelcome behavior is promptly reported and halted.

Citing the recent Supreme Court Epic Systems Corp decision, Gov. Brown also vetoed AB 3080, which would have barred employers from requiring employees and independent contractors to sign arbitration or nondisclosure agreements as a condition of employment.

Outlook:  Employers can expect other states to enact similar legislation in 2019 and for Democrats to introduce similar measures in Congress.