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What You Need to Know in 2019 Series: California's Sexual Harrassment Omnibus Bill (1 of 6)

What You Need To Know in 2019 Series:
California’s “Sexual Harassment Omnibus Bill” SB 1300
1 of 6


The ”Sexual Harassment Omnibus Bill” SB 1300

According to Government Code section 12923, the purpose of the “Sexual Harassment Omnibus Bill” is to provide all Californians with an equal opportunity to succeed in the workplace. But what does that mean for employers? The new law lowers standard of proof required to prove harassment, updates what discriminatory remarks can be considered for a claim, expands employer liability for conduct of non-employees, increases difficulty of recovering attorney’s fees and costs after a win, and prohibits employers from taking certain actions which may ward off existing or future claims. Read more about these important changes to Sexual Harrassment law below.

 

Lower Standard of Proof To Prove Harassment:

  • SB 1300 lowers the standard of proof required to prove harassment.
  • Proving “severe or pervasive” conduct that rises to the level of unlawful harassment is now easier as the benchmark is now:
    • “harassing conduct [that] 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.”  (Id. at 26)

 

Discriminatory Remarks That Qualify For a Claim:

  • Discriminatory remarks in the workplace, even when not made directly in the context of an employment decision, or if uttered by a non-decision maker, may be considered.
  • The “stray remark” doctrine that previously required more than one offensive remark to succeed on a claim is invalidated by SB 1300.

 

Expansion of Employer Liability for Non-Employee Conduct:

  • Existing law states employers may be responsible for the acts of non-employees with respect to sexual harassment of employees and other specified persons, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
  • SB 1300 has expanded this definition to include all harassment (removes the “sexual harassment” limitation)

 

More Difficult to Recover Attorney’s Fees and Costs:

  • Prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

 

Limitations on How Employers May Ward off Existing or Future Claims:

  • SB 1300 prohibits employers, in exchange for a raise or bonus, or as a condition of employment or continued employment, from requiring the execution of a release of a claim or right under FEHA.
    • Any such releases are contrary to public policy and unenforceable.
  • Prohibits employers from requiring employees to sign non-disparagement agreements or “other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace including but not limited to sexual harassment”.
    • Any such agreements are contrary to public policy and unenforceable.

What Can Employers Do?

  • Implement trainings for management/supervisors and non-supervisors.
  • Enforce a respectful culture.
  • Make managers own the responsibility for discriminatory behavior of their teams.
  • Establish strong company policies and procedures and enforce them.
  • Conduct prompt, thorough and unbiased investigations when complaints are raised.

Also Be Aware Of These Other New Regulations:

  • SB 224 - Harassment Liability Expanded Beyond Employment Context and into Professional Relationships
  • SB 820 - Sexual Harassment Settlement Agreements Limited by Barring Nondisclosure Agreements related to Sexual Harassment Claims
  • AB 3109 - Waivers of Rights of Petition and Free Speech
  • AB 2770 - More Limited Defamation Exposure for Discussion of Sexual Harassment Complaints
  • SB 1343 - Increased Sex Harassment and Abusive Conduct Prevention Training Requirements



This update is one of six, don’t miss out on the remainder of the What You Need To Know in 2019 Series.

What’s New for Employers in 2018: California Legis...

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