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New California Sexual Harassment Laws May Predict Trend in Other States

    Client Alerts
  • October 15, 2018

On the heels of the #MeToo movement, a number of states have passed or at least considered new laws intended to strengthen legal protections against workplace sexual harassment. Two weeks ago, California Governor Jerry Brown signed into law a variety of changes to that state’s equal employment laws intended to address perceived gaps in prevention and prosecution of harassment claims.

The new law makes the following changes to California law:

  1. It expands employer responsibility for various forms of workplace harassment beyond sexual harassment engaged in by non-employees.
  2. Virtually all California employers will have to provide two-hour harassment training to employees. The law authorizes employers to provide bystander training to encourage co-workers to intervene and report incidences of workplace harassment.
  3. Employers are prohibited from mandating employee non-disclosure and non-disparagement agreements in return for a raise or bonus, or as a condition of continuing employment. Settlement agreements made in the context of an actual dispute between the parties cannot require the employee to keep confidential information relating to sexual harassment or sex discrimination.
  4. It increases the burden on defendants to recover legal fees based on unfounded harassment claims brought against them.
  5. The law makes clear that a single incident of harassment is sufficient for the claim to proceed to a jury trial if the circumstances interfered with the plaintiff’s work or created a hostile work environment. Casual incidences of discriminatory comments (or “stray remarks”) in the workplace will be considered circumstantial evidence of discrimination.
  6. Non-employer third parties such as investors and directors can be sued for workplace harassment.

Governor Brown vetoed a number of additional measures that would have extended the limitations period for filing harassment claims from one to three years, would have barred mandatory arbitration agreements with employees, and would have substantially increased employers’ record-keeping burdens associated with sexual harassment investigations.

California often serves as the states’ laboratory for new employment laws. These new laws may be used by other states that consider strengthening protections for victims of workplace harassment. The provisions restricting the use of non-disclosure and non-disparagement agreements may in the end turn out to be the most important change in the way that businesses have traditionally dealt with claims of workplace harassment.