SB 1300: #MeToo movement fuels legislative change

Armed with public support, California legislators spent much of 2018 drafting legislation to prevent and combat sexual harassment in the workplace. Senate Bill 1300, for example, took effect Jan. 1 and contains numerous substantive changes for how harassment-related claims are litigated and resolved.

First, SB 1300 makes it an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment, to (1) require an employee to sign a release of a claim or right under California's Fair Employment and Housing Act or (2) require an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful or potentially unlawful acts in the workplace. Negotiated settlement agreements, however, are exempt from these prohibitions if they resolve an underlying FEHA claim.

Second, SB 1300 lays out the Legislature's intent to affirm or reject the holdings in certain prior federal and state court decisions involving harassment claims. The Legislature's use of a declaration of intent is unique because such declarations are not binding on the courts but are persuasive authority. As a result, the weight given to the following provisions of SB 1300 remains unclear: (1) a plaintiff need only prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered the working conditions as to make it more difficult to do the job; (2) a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment; (3) discriminatory remarks unrelated to an employment decision and discriminatory remarks made by coworkers and non-decision-makers are relevant circumstantial evidence of discrimination; (4) the legal standard for sexual harassment should not vary by the type of workplace; and (5) harassment cases are rarely appropriate for disposition on summary judgment. If courts acknowledge the Legislature's intent, these provisions will make it easier for plaintiffs to bring, litigate and win harassment suits.

Third, in addition to providing an inside track for harassment plaintiffs to meet their burden of proof, SB 1300 limits an employer's ability to collect attorney's fees and costs. SB 1300 bars a prevailing defendant-employer from receiving attorney fees or costs unless the court finds that the action was "frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so." This prohibition applies notwithstanding Section 998 of the California Code of Civil Procedure.

Lastly, SB 1300 expands harassment liability for third parties to cover other forms of illegal harassment (e.g., based on race or age). This reflects the Legislature's efforts to eradicate all forms of workplace harassment and ensure accountability of employees and non-employees alike.