Bill seeks personal liability for retaliation

Inappropriate behavior abounds in the workplace, from the bottom to the very top. Harvey Weinstein is facing criminal charges. Les Moonves is facing an investigation over sexual harassment charges. FEMA's former personnel chief stands accused of fostering sexual harassment at the agency. Uber's head of human resources resigned amid allegations of improper handling of racial discrimination complaints.

While high-profile sexual harassment charges make the news, what about everyone else? Are the #MeToo and #TimesUp movements enough to enact real change? Many victims of sexual harassment remain terrified to say anything out of fear that it will end their careers.

Under existing law, employees found liable for harassment are personally liable for their actions. However, the California Supreme Court ruled in Jones v. The Lodge at Torrey Pines Partnership, 42 Cal. 4th 1158 (2008), that individuals may not be held personally liable for retaliation.

Legislation is working its way through the California Legislature to change that by holding individuals personally accountable for retaliation in the workplace. Senate Bill 1038, authored by State Sen. Connie Leyva, passed the Senate May 30 and went for a third reading in the Assembly on July 5. The bill, which appears to be on the final leg of its journey to the governor's desk, would make employees personally liable for retaliation against workers who complain about harassment and discrimination. The act would amend Section 12940 of the California Government Code, relating to employment, by adding language imposing personal liability on individuals who retaliate in violation of said section.

Section 12940 prohibits discrimination and harassment based on a number of protected classes, including race, religious creed, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and veteran status.

Subdivision (h) of Section 12940 currently prohibits an employer from discharging, expelling or otherwise discriminating against any person who has opposed practices forbidden under Section 12940 or who has filed a complaint, testified or assisted in any proceeding under that section.

If SB 1038 is enacted, new language would be added to subdivision (j), paragraph (3) to impose personal liability not only for harassment, but also for violations of subsection (h). The paragraph would be amended to read as follows (italicized wording signifies the proposed change):

"An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective action. The employee is also personally liable for any action prohibited by subdivision (h) in connection with the harassment prohibited by this section that is perpetrated by the same employee."

As Levya stated: "Threats of retaliation are one of the biggest barriers for women and men who wish to file sexual harassment complaints. SB 1038 tells harassers that they will be held accountable if they try to interfere with or threaten someone who has made a sexual harassment claim -- as is their clear legal right to do."

Retaliation is already unlawful. This would put more teeth into the law by making the harasser personally liable for not only the harassment, but also for retaliating against the complainant. Employers often provide defense and indemnity to individually named employees (and, in many cases, are obligated to do so). However, being personally named in a lawsuit can have a drastic impact on the individual's reputation and credit history, among other things. The hope is that, by educating employees that they too have exposure if they engage in wrongful retaliatory behavior, they will refrain from doing so.

Many agree that harassers should be held liable if they retaliate against their victims for complaining about them. But employers are expressing concern about unintended consequences of the pending legislation, including an increase in meritless lawsuits. Depending upon the text of the final bill, lawsuits could encompass everyone involved in an adverse employment decision, including HR managers. Employers contend this will make it more difficult to hire qualified professionals. The National and California Chapters of the Society for Human Resources Management have opposed SB 1038: "SHRM and CalSHRM believe the bill is unfair to employees and unduly penalizes HR professionals simply for making the personnel management decisions they are entrusted to make."

Having safeguards against meritless claims that can potentially destroy an innocent person's reputation is, of course, important. It is also clear that more must be done to stop harassment and retaliation.

The "moment" toward resolving these issues was squandered in the 1990s. Data continues to show that mandatory training for management at larger companies, as well as having anti-harassment, discrimination and retaliation policies in employee handbooks, has not worked. Holding harassers liable for both harassment and retaliation against their victims is at least a step in the right direction.