The Law at Work: New principles to help courts clarify sexual harassment laws in California
In his The Law at Work column in the San Diego Union-Tribune, Shareholder Dan Eaton outlines the new laws set to take effect next year regarding how California courts evaluate sexual harassment claims and how California employers address and prevent sexual harassment. The California Fair Employment & Housing Act (FEHA) now will include five advisory principles for courts to use in interpreting the law:
- A person claiming sexual harassment won’t have to show her productivity declined because of the harassment. Proof that the alleged harassment would have made it harder for a reasonable person to do her job will suffice.
- Just a single incident of harassing conduct will preclude summary dismissal of a sexual harassment claim if the harassing conduct “unreasonably interfered with the [employee’s] work performance” or created a hostile work environment.
- A stray offensive remark unconnected to an employee’s termination or other adverse action or not made by a decision-maker may be evidence of a legally actionable hostile work environment.
- All workplaces will be held to the same legal standard in determining whether sexual harassment occurred. The only exception will be if witnessing or engaging in sex-related conduct is “integral” to the job.
- Claims of sexual harassment will “rarely” be appropriate for summary dismissal. A legislative analyst explained that a judge or jury “informed by live testimony and exposed to all of the nuances of a case will be better situated to assess the totality of the circumstances” than a judge evaluating the claim based exclusively on the written submissions of the parties.
In addition, another new law will require more employers to train their employees about sexual harassment and will require more kinds of employees to be trained. By Jan. 1, 2020, employers with five or more employees — not just those with 50 or more employees — will have to provide interactive sexual harassment training and will have to provide such training to all employees, not just supervisors. The training will have to be completed within six months of hire and every two years thereafter. Supervisors will have to receive at least two hours of training and non-supervisors will have to receive at least one hour.
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