Recently, the public, media, judges and jurors have all increased their sensitivities toward rectifying the devastating impact discrimination, sexual harassment and sexual assault have on its victims. A number of policy changes have been made, especially with regard to victims of harassment. Highly publicized incidents, cases and verdicts, further put into the spotlight in part due to the #MeToo movement, have all contributed to the public’s increased awareness, outrage and corresponding need for effective remedies.
Nowhere has this been more evident than in the California State Legislature. A national leader in harassment prevention measures, the State Legislature recently amended the Fair Employment and Housing Act under Senate Bill 1300 to make sweeping changes to what constitutes harassment, and how harassment cases are handled.
Most noteworthy, the standards have been loosened as to what constitutes sexual harassment. That is, a plaintiff needs no longer show tangible proof that their productivity declined as a result of the sexual harassment. Instead, the plaintiff need only show that a “reasonable person” would find that the harassment made it “more difficult” to do their job. This was a firm rejection of the impossibly stringent standards that were previously held to prove harassment and the impact that it had on victims.
Additionally, a single incident of harassing conduct is now enough to qualify for a hostile work environment if the harassment has unreasonably interfered with the plaintiff’s work performance. The incident of harassment can also qualify for a hostile work environment if it is categorized as creating an intimidating, hostile or offensive work environment.
The new measures undoubtedly will serve to prevent more incidents of sexual harassment in the workplace. Just one harassing incident can constitute sexual harassment, which is a big win for plaintiffs. Now harassers will be held accountable for all of their incidents of harassment.
As California State Legislature amended in Government Code Section 12923, these types of cases are now “rarely appropriate for disposition on summary judgment.” Moving forward, it will be more difficult to throw out such cases before the plaintiffs have their day in court. The potential effect of this will be to decrease the instances of victims of harassment being “silenced” from being heard before a jury of their peers.
Previously, it was much easier for these cases to be disposed of on a motion for summary judgment due to technicalities of conduct not meeting the “severe or pervasive” standard. What was once known as the “one touch” rule colloquially will no longer be something that harassers can get away with.
Another important impact of the Fair Employment and Housing Act overhaul is the amendment that employers may be liable for the harassing conduct of nonemployees towards employees, applicants, unpaid interns or volunteers. This expands the employer’s liability for harassment against its employees, regardless of who the harasser is. It is hoped the amendment will work to motivate employers to put further protections in place to keep their employees safe.
The California State Legislature’s new measures are expected to not only curb harassment from happening, but also to provide more agency for victims of sexual harassment and to allow them to bring their cases to court, if need be. The state’s measures should be a beacon for sexual harassment prevention in the country. Carney Shegerian