New law will boost workers’ chances in harassment and discrimination lawsuits

SAN FRANCISCO -- For attorneys defending harassment and discrimination claims, 1,300 could turn out to be a very unlucky number. That was the message from Genie E. Harrison at the "Shifting the Balance" panel at the Consumer Attorneys of California's 57th Annual Convention.

While several #MeToo bills made it through the Legislature this year, the founder of the Genie Harrison Law Firm APC in Los Angeles spent nearly half of her presentation Friday on just one: SB 1300.

While it would be a mistake to boil down the nearly 8,500 word law to a single provision, Harrison pointed to one section that could start making a difference in California courts on a near daily basis starting Jan. 1: Government Code 12923, which defines the "severe or pervasive" standard in employment cases.

"There are an awful lot of judges in my experience who were wrong about the standard, and a lot of cases got kicked out on summary judgment on the hostile working environment claims," Harrison said.

She described one case in which she represented Hispanic hotel workers who said they were called "beaners and wetbacks" on a daily basis, but a judge said that didn't meet the hostile workplace standard. On many occasions, Harrison added, she essentially had to tell prospective clients to "go back and get harassed some more" so they would have a claim that would survive summary judgment.

The updated version of the standard will consider whether the language humiliates or causes distress for the worker and if the harassment interfered with the victims' ability to do their job.

It also makes it easier to sue over a single incident by throwing out the precedent set under Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000). This is also known as the "one free grab" case, in which a supervisor was convicted of sexual assault but not civil liability.

The new code "really changes things in terms of how we're going to be able to argue it to the judge," Harrison said. After pointing out several other new laws that will work to the advantage of plaintiffs' attorneys, Harrison pointed to a top consumer attorneys group priority for next year: ending arbitration as a condition of employment. In a veto message for a bill that would have done that, AB 3080, Gov. Jerry Brown wrote the law violated the Federal Arbitration Act.

Many consumer attorneys disagree, or would at least like to see the question tested in court. Assemblywoman Lorena Gonzalez Fletcher, D-San Diego, who attended the attorneys' group's awards dinner on Saturday night, has said she is likely to bring back the idea.

"We've got a lot of work to do with Gavin Newsom on that," Harrison said, in reference to the incoming governor who has positioned himself as a progressive.

The consumer attorneys group will have plenty of allies as it seeks to pass a new version of AB 3080, with Democratic super majorities in both houses.

At least nine of the Legislature candidates the consumer attorneys group endorsed won their races.