The “Me Too” Movement’s Influence on Legislative Action
The “Me Too” movement burst onto the social awareness scene in late 2017. Encouraged to speak out to raise awareness of the prevalence of sexual assault and harassment, particularly in the workplace, many victims took to social media as their platform. Among the advocates unveiling their own experiences with sexual violence in the workplace were well-known male and female celebrities, athletes, and politicians, including Ellen DeGeneres, Gabby Douglas, Jennifer Lawrence, James Van Der Beek, and Elizabeth Warren. In response, lawmakers began taking remedial measures in an attempt to rectify past injustices and deter future occurrences. As California has provided the backdrop for many of these allegations, it is fitting that California enforce legislature to inhibit such occurrences.
On September 30, 2018 California Governor Jerry Brown signed into law a number of bills will go into effect January 1, 2019 and impact employers. Under the new laws, the approach to preventing sexual harassment and assault in the workplace, the settling of such claims, and the litigation of such claims will require reframing. Employers must be proactive by implementing revised protocols, procedures, programs, and other innovative safeguards as compliance with the new standards will be the first line of defense should sexual harassment claims be filed against an employer.
The package of countermeasures includes six new laws which every diligent California employer must know and consider. Collectively and effectively, these bills: (1) expand the pool of professionals who may find themselves as named defendants in sexual harassment lawsuits; (2) increase the statute of limitations for such claims to be commenced; (3) lower a plaintiff’s burden of proof in such lawsuits; (4) require extensive sexual harassment training for employees; (5) prohibit nondisclosure language in settlement agreements where the language precludes employees from disclosing factual information pertaining to sexual harassment where action has been filed in a court of law or administrative agency; and (6) make unenforceable nondisclosure language contained in settlement agreements regarding alleged criminal conduct or sexual harassment in administrative, legislative, or judicial proceedings.
1. The Expanded Definition of Sexual Harassment (Senate Bill 224)
A prerequisite of a successful sexual harassment claim is the existence of a professional relationship between the plaintiff and defendant. Defendant must be an individual who presents themselves as being able to assist plaintiff in establishing a business, service, or professional relationship with the defendant or a third party. Under the new law, a plaintiff will no longer be required to prove his or her inability to easily terminate the relationship. In fact, under the new law, a claim may even arise before the relationship is established. Additionally, the Department of Fair Employment and Housing is entitled to investigate sexual harassment claims in the workplace.
As an amendment to California Civil Code § 51.9, Senate Bill 224 provides additional examples of professions which may give rise to liability for sexual harassment claim. Such professions include, but are not limited to: attorneys; physicians; psychotherapists; real estate agents; investors; bankers; debt collectors; building contractors; landlords; property managers; teachers; elected officials; lobbyists; directors; and producers.1 Employers should consult the full text of the law to learn if their profession, or those similar, are specifically listed.
2. The Increased Statute of Limitations for Sexual Assault Claims (Assembly Bill 1619)
Effective January 1, 2019, a civil action for recovery of damages due to sexual assault, attempted sexual assault, or assault with intent to commit an act of sexual assault may be filed within 10 years of the alleged assault or within three years after plaintiff discovers injury or illness as a result of the conduct, whichever is later.2 Employers should consider the practicalities of the larger window of time they may be liable for such claims which can be brought against the employer and past and present employees. To address this expanded window of potential liability, employers are encouraged to increase preventative measures already in place, such as greater frequency of employee sexual harassment training.
3. Amendment to the Fair Employment and Housing Act (“FEHA”) (Senate Bill 1300)
Beginning January 1, 2019, a FEHA amendment will lower an employee’s burden of proof in a sexual harassment action, making it easier for the employee to prevail against an employer. The amendment provides legislative intent for FEHA and declares harassment cases are rarely appropriate for disposition on summary judgment. As a result, employers should anticipate that these claims will advance to trial. Additionally, a “stray remark” made by a non-decision-maker can be enough to establish discrimination. For this reason, employers should ensure all employees are educated on their personal accountability for mindful speech and action at work. Furthermore, a single incident of harassing conduct could be enough to establish a hostile work environment.
The new law will prohibit employers from requiring releases of FEHA claims from employees as a condition of a bonus, a raise, employment, or continued employment. Also, employers will be liable for any kind of unlawful harassment, not only sexual harassment, by nonemployees where the employer knew or should have known of the harassment, and failed to take remedial action. Accordingly, employers should review their management of FEHA claim releases and all forms of potential harassment in the workplace.
Additionally, employers will be frustrated in the ability to collect post-offer fees and costs pursuant to Code of Civil Procedure §998 where plaintiff rejects the offer and fails to obtain a more favorable judgment. Before collecting, an employer will be required to show the action was frivolous, unreasonable and/or without merit or show plaintiff continued to litigate the matter after becoming aware that the case had no merit.3 Consequently, the ability of an employer to fully utilize a Code of Civil Procedure §998 offer to compromise in a sexual harassment case may be more challenging than it has been historically.
4. Sexual Harassment Training (Senate Bill 1343)
By January 1, 2020, employers with five or more employees will be required to provide supervisors with sexual harassment training, a substantial change from the current training requirements applying only to employers with fifty or more employees. Supervisory employees must complete at least two hours of training, and nonsupervisory employees an hour. Everyone must repeat the training every two years. The Department of Fair Employment and Housing will also be required to create training materials for employers to use for training purposes.4
Effected employers should act proactively to schedule and provide training to employees. In addition to routine training using the materials provided by the agency, employers may consider adopting other preventative measures such as bringing in external education specialists, providing anonymous surveys to employees, regularly circulating informative material including reporting resources, and increasing the frequency of trainings above the threshold standards prescribed by law. Compliance with the new sexual harassment training standards, as well as innovative internal programs, is key to drastically reduce the incidence of sexual harassment in the workplace, thereby preventing both harm and legal liability.
5. Settlement of Sexual Harassment Claims (Senate Bill 820)
Effective January 1, 2019, nondisclosure provisions in settlement agreements which preclude setting employees from disclosing factual information related to sexual assault, sexual harassment, gender discrimination, related retaliation, and “failure to prevent” claims filed in a civil court of law or with an administrative agency will become unenforceable. Based on a strict reading of the law, SB 820 does not intend to prohibit use of nondisclosure provisions in situations where parties make efforts to resolve claims before filing a civil lawsuit or an administrative action.5 Employers should be aware that while nondisclosure provisions of this nature may be enforceable in a successful settlement, enforcement will may be found void and in violation of public policy upon if a lawsuit or administrative action is actually filed.
Notwithstanding prohibition of enforcing nondisclosure provisions in certain contexts, parties will still be entitled to agree to terms precluding disclosure of settlement amounts. Moreover, a claimant will not be precluded from enforcing provisions limiting the disclosure of his or her identity or other identifying information.
6. Settlement Agreements (Assembly Bill 3109)
The scandal involving former USA Gymnastics team doctor Larry Nassar, who pled guilty to ten counts of first-degree criminal sexual assault of minors and was accused of sexual misconduct by more than 265 others, was likely influential in the enactment of the Assembly Bill 3109. Before Nassar’s arrest in December 2016, Olympic gold medalist McKayla Maroney entered into a settlement agreement with USA Gymnastics which incorporated nondisclosure provisions regarding the sexual abuse Ms. Maroney and scores of other athletes suffered at the hands of Nassar. In December 2017, Ms. Maroney filed suit against Nassar, Michigan State University, the United States Olympic Committee, and USA Gymnastics, alleging she was forced to agree to the non-disparagement clause and confidentially provision as a condition of the $1.25 million settlement. California law prohibits settlement agreements containing provisions which conceal sexual abuse of minors.
In January 2018, Ms. Maroney joined more than 150 other victims when she read her victim’s impact statement during Nassar’s sentencing hearing. She spoke about her abuse by Nassar beginning when she was only thirteen or fourteen years-old during National Team training camps and its continuance until her retirement from the sport. She recounted waking up in Nassar’s hotel room in Tokyo after he had given her a sleeping pill for the team’s long flight. Upon waking, she found herself being “treated” and thought she might die. The abuse occurred even before the team’s gold win in London and Ms. Maroney’s individual Silver Medal win. Ms. By testifying at Nassar’s criminal trial, Ms. Maroney was subject to a $100,000.00 fine for violating the nondisclosure provisions of her prior settlement agreement with USA Gymnastics. USA Gymnastics ultimately waived the fine.
Now, the prohibition of nondisclosure provisions in settlement agreements in civil and administrative actions, have a criminal equivalent under California’s new law. Specifically, nondisclosure provisions of the same nature will be void and unenforceable where they would preclude disclosure of alleged criminal conduct or sexual harassment in any legal proceeding.6 In light of the new law, employers should review the use of such nondisclosure agreements and proceed accordingly moving forward.
January 1, 2019 is just around the corner. California employers should take into serious consideration the significance of the new laws and the necessity of compliance. Although this suite of new laws will require employers to be dynamic in reframing the workplace environment, the settling of claims, and litigation, these safeguards will serve to protect individuals from harm and employers from liability. Proactivity is the best approach.