SB 1300 Expands FEHA Litigation, But Employers and Lawyers Beware
Tuesday, January 22, 2019
Governor Jerry Brown signed Senate Bill 1300 (Jackson) on Sept. 30, 2018 as Chapter 955. Among other provisions, this comprehensive bill makes a number of statutory changes for litigating sexual harassment claims and prohibits employers from requiring employees to sign a release of claims under the Fair Employment and Housing Act in exchange for a raise or as a condition of employment.
Effective Jan.1, 2019, the bill amends Sections 12940 and 12965 of and adds Sections 12923, 12950.2 and 12964.5 to the Government Code. This article first examines the statutory changes made by SB 1300 and then reviews the legislative intent language adopted.
Part I – Statutory Changes
Existing state law, the California Fair Employment and Housing Act (FEHA), makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment to engage in harassment of an employee or other specified persons. FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, 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.
SB 1300 amends the FEHA statute to specify that an employer may be responsible for the acts of nonemployees with respect to other harassment activity. The bill also expands this liability to cover all forms of harassment, rather than being limited, as it is under current law, to only sexual harassment. The bill strikes the word “sexual” preceding the word “harassment” in Government Code Section 12940(j)(1) to effect this change in the law.
Moreover, with specified exceptions, SB 1300 prohibits an employer, 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 or from requiring an employee to sign a nondisparagement agreement 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. The bill makes this change in the law by adding Section 12964.5 to the Government Code.
SB 1300 provides that these prohibitions do not apply to “a negotiated settlement agreement to resolve an underlying claim under FEHA that has been filed by an employee in court, before an administrative agency, alternate dispute resolution forum, or through an employer’s internal complaint process.”
In addition, FEHA requires employers to provide training and education regarding sexual harassment. SB 1300 authorizes an employer to provide bystander intervention training to their employees. However, the law change does not require such training. Guidelines for what constitutes optional bystander intervention training per SB 1300 will most likely be provided by the Fair Employment and Housing Council through its regulatory process.
To provide this bystander training, the bill adds Government Code Section 12950.2 to read: “An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.”
Finally, FEHA authorizes a court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorney’s fees and costs, including expert witness fees. SB 1300 provides that a 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.
The bill accomplishes this statutory change by adding the following clause to the end of subdivision (b): “…except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.”
All of these statutory changes adopted by SB 1300 will make FEHA litigation costlier and more time-consuming for employers in this state. And it will undoubtedly make settling such claims or lawsuits more difficult and costlier.