After #MeToo

In 2006, activist Tarana Burke wrote of her experience in which she felt that she failed a young girl who reported a sexual assault to her.  Burke did not feel prepared to assist the girl, and sent her to see another counselor.  Burke regretted not telling the girl, “me too.”[i]

Eleven years later, in the wake of numerous stories of sexual misconduct by disgraced Hollywood mogul Harvey Weinstein, actress Alyssa Milano used her platform on Twitter and revived the hashtag #metoo to bring attention to the movement Burke had started, and the movement went viral.[ii]  Stories of sexual misconduct in the workplace dominated the news in a way they had not since the 1990s.

The EEOC issued its first Guidelines defining sexual harassment, in two types, in 1980.  One type, commonly known as quid pro quo harassment, involves unwelcome sexual advances, requests for sexual favors, or verbal or physical conduct of a sexual nature in exchange for economic benefit.  The second type, hostile work environment, concerns where harassing conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”[iii]

The U.S. Supreme Court first acknowledged that Title VII of the Civil Rights Act of 1964 prohibits these types of sexual harassment in the 1986 case Meritor Savings Bank, FSB, v. Vinson.  The court further held that to be actionable, hostile work environment sexual harassment must be sufficiently severe or pervasive as to alter the conditions of the victim’s employment and create an abusive working environment.[iv] 

Coinciding with the #metoo movement, the EEOC saw an increase in charges alleging sex-based harassment from 12,428 in fiscal year 2017 to 13,055 in fiscal year 2018.[v]  The California Department of Fair Employment and Housing reported that it received 683 complaints and issued an additional 3,698 right-to-sue letters regarding sexual harassment in 2017.[vi]

In 2018, the California Legislature took action to respond to the renewed urgency of the sexual harassment problem in the #metoo era, passing several new statutes that took effect on January 1, 2019 and 2020.

Senate Bill 1300 (SB 1300), passed by relatively slim margins of 41 to 33 in the Assembly and 25 to 10 in the Senate, made several changes to the Fair Employment and Housing Act (FEHA) that will impact the resolution of sexual harassment cases.

SB 1300 created new Government Code section 12923, which set forth five Legislative declarations regarding its intent as to the application of the state’s harassment laws.  First, citing Justice Ruth Bader Ginsburg’s concurrence in Harris v. Forklift Systems, the Legislature declared that a plaintiff “need not prove that his or her tangible productivity has declined as a result of the harassment.  It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.”[vii]  Some commentators interpret this provision as lowering the bar for what will qualify as actionable harassment.

Second, section 12923 clarifies that a single incident can create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonable interfered with the plaintiff’s work environment or created an intimidating, hostile or offensive working environment.[viii]  The Legislature condemned the ruling in Brooks v. City of San Mateo, in which former Judge Alex Kozinski inexplicably found that a forcible touching of the plaintiff’s breast did not rise to the level of “severe or pervasive.”[ix]

Third, section 12923 gives Legislative affirmation to the California Supreme Court’s decision in Reid v. Google, rejecting the “stray remarks” doctrine, and holding that the existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination.[x]

Fourth, the Legislature declared that the standard for sexual harassment should not vary by the type of workplace, and the fact that a particular occupation may have had a characteristically greater frequently of sexually related commentary in the past is irrelevant: it is no defense to say that your industry has always allowed “locker room talk.”[xi]  This subdivision does, however, permit courts to consider the nature of the workplace when engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties (e.g., the adult entertainment industry.)  The Legislature declared its disapproval of any language to the contrary in Kelley v. Conco Companies.[xii]

Finally, the Legislature expressed its view in section 12923 that “[h]arassment cases are rarely appropriate for disposition on summary judgment.”  In so doing, the Legislature cited with approval the dictum in Nazir v. United Airlines, Inc. that hostile working environment cases involve issues “not determinable on paper.”[xiii]  Given this new provision, employers’ counsel should speak candidly with their clients as to whether a summary judgment motion is worth the expense in any given harassment case.  For their part, employees’ attorneys would be well advised to cite this language in nearly all MSJ opposition memoranda.  Just as before the #metoo movement went viral, the three main tools for reducing incidents of sexual harassment in the workplace are policy, training, and accountability.

Employers are required to have a policy prohibiting sexual harassment.[xiv]  Department of Fair Employment and Housing regulations require that employers develop a written policy that, inter alia, prohibits employees and non-employees from discriminating, harassing, or retaliating based on any protected status, and protects applicants, volunteers, independent contractors and employees from being subjected to prohibited conduct.[xv]

Employers are also required to post the Department of Fair Employment and Housing’s poster on discrimination in employment, which includes information on the illegality of sexual harassment, and a poster developed by the Department regarding transgender rights, in a prominent and accessible location in the workplace.[xvi]

Employers should remember that the law establishes a floor with respect to acceptable conduct in the workplace – multiple cases make clear that the law does not create a “civility code” for the employment relationship.[xvii]  However, employers can and should require more than the bare minimum from their employees.  If an employer’s policy requires employees to treat each other with courtesy, respect, or, yes, “civility,” this could provide a solid ground for discipline up to and including termination of an employee whose boorish or sexist conduct may not yet have risen to the level of “severe or pervasive” in the eyes of the courts, before it escalates.

Should employers institute policies prohibiting employees from engaging in dating or sexual relationships with each other?  Given the amount of time the modern economy requires people to spend at work, prohibition simply isn’t realistic in many cases.  However, between peers do carry some risk of harassment liability, as behavior that was once welcome can become unwelcome.  Employers should do their best to remain aware of these relationships, and consider whether it is necessary to put romantic partners in separate work groups.  However, there is greater potential for exposure when there is a power differential between the participants in a sexual relationship.  In a very high-profile example of the risks of such relationships, McDonald’s replaced its CEO, Steve Easterbrook, because of a consensual relationship with a subordinate in violation of company policy.[xviii]

It is mandatory under California state law for employers with five or more employees to provide sexual harassment training that covers fourteen designated topics.  This training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.[xix]

New statute SB 1343, passed unanimously by both the Senate and the Assembly, amends Government Code sections 12950 and 12950.1 to expand these training requirements.  These sections previously required employers with 50 or more employees to provide at least 2 hours of sexual harassment training to all supervisory employees within 6 months of becoming supervisors, and once every two years.  Under the amended law, employers who employ 5 or more employees, including temporary or seasonal employees, must provide at least 2 hours of sexual harassment training to all supervisory employees and at least 1 one hour of sexual harassment training to all nonsupervisory employees by January 1, 2012, and once every two years thereafter.  The amended statue also requires the Department of Fair Employment and Housing to develop or obtain 1- hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and to make these courses available on the Department website. Clean-up legislation pushed back the onset of these obligations until calendar year 2020.[xx]

New Government Code section 12950.2, passed as part of SB 1300, provides that employers “may also” provide bystander intervention training that includes information and guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.  On the face of the statute, it does not appear that providing bystander training would count toward meeting an employer’s obligations under § 12950.1.

Additionally, relevant to a vital slice of the Los Angeles County economy, Assembly Bill 2338, governing talent agencies, adds provisions to the Labor Code requiring that sexual harassment prevention and reporting materials be provided to artists within 90 days of agreeing to representation.[xxi]  Before a work permit can be issued to an age-eligible minor, both the minor and his or her parent or legal guardian must complete training in sexual harassment prevention, retaliation, and reporting services.[xxii]

Because sexual harassment training is mandatory, employers must provide it whether it is effective or not.  Of course, to reduce exposure to liability, firms are better off if the training works.  Unfortunately, this is easier said than done.  In 2016, the EEOC published a report that concluded, “Empirical data does not permit us to make declarative statements about whether training, standing alone, is or is not an effective tool in preventing harassment.”[xxiii]

Social science researchers and legal scholars have studied harassment training to evaluate the different types of training and their effectiveness.  This research suggest that risk-aversion, common to lawyers and human resources professionals, may have caused harassment training to stagnate, as employers opt to play it safe with training that is designed primarily to comply with statutory requirements, as opposed to attempting to change employee behavior.  This research suggests that training that explains the harms suffered by victims of harassment may be more effective in reducing harassment than training explaining policy in detail. [xxiv]

As with any social change, there has been backlash to the #metoo movement.  A recent LeanIn survey indicates that male managers fear putting themselves at risk of exposure to harassment claims if they meet with women individually, casually, or over a meal or drinks.[xxv]  Vice President Mike Pence garnered significant news coverage for stating that he does not eat meals alone with women other than his wife.  This can expose employers to discrimination liability, as this practice tends to exclude women from informal bonding and networking opportunities that can be critical to bona fide career development.[xxvi]  Facebook COO and LeanIn founder Sheryl Sandberg wrote in a February 6, 2018 Facebook post, “As for the Pence rule – if you insist on following it, adopt a revised version.  Don’t want to have dinner alone with a female colleague? Fine.  But make access equal: no dinners alone with anyone.  Breakfast or lunches for all.  Or group dinners only, nothing one-on-one.  Whatever you choose, treat women and men equally.”[xxvii]

Supervisory employees have the responsibility to prevent harassment, discrimination, and retaliation.  This obligation does not arise only when employees complain – supervisors must also report conduct they have observed or overheard.  Supervisors should take action when they learn of conduct that violates the employer’s policy, whether or not the victim calls it “harassment” or files a formal complaint.

Management should initiate a prompt and thorough investigation.  Depending on the circumstances, it may be prudent to retain the services of on outside, independent investigator.  Plaintiffs’ attorneys can be expected to attack the independence of the investigator on the grounds that he or she is being paid by the employer; however, an investigator’s credibility is his or her stock in trade, and most reasonable people understand that investigators, like everyone else, have bills to pay and cannot work for free.  Further, the purpose of an investigation is fact-finding: the employer may find evidence to support the termination of a harasser, evidence to defend itself against a harassment suit, or neither.  The investigator should not make conclusions as to whether sexual harassment under the law occurred; an employer may be comfortable with an investigator making findings as to whether the conduct violated the employer’s policy.

Many sexual harassment investigations can be conducted quickly, because there are few witnesses to interview beyond the complaining employee and the alleged harasser.  In other cases, there will be other witnesses and documents to review.  In the digital age, digital communications such as e-mail, text messages, and Slack may be critical sources of evidence.  The investigator should prepare a report, which the employer should review thoroughly.  If the investigation reveals conduct that violates the employer’s policy, whether or not the conduct also violates the law, the employer should take appropriate disciplinary action, up to and including termination.

California employers should be aware that the California Supreme Court has held that federal Faragher-Ellerth doctrine is unavailable under the FEHA.  The Faragher-Ellerth doctrine provides a complete affirmative defense to harassment claims where the employer has exercised reasonable care to prevent and correct promptly any harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. However, California employers may limit damages in FEHA sexual harassment suits by proving the affirmative defense of avoidable consequences where the employee has unreasonably failed to take advantage of measures available under the employer’s policy, and reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered.[xxviii]

SB 1300 also establishes that an employee who is alleged to have engaged in harassment may be held personally liable for retaliation against persons who have opposed practices forbidden by the FEHA or being a witness in such an action.[xxix]  In addition, SB 1300 prohibits employers from conditioning a raise, bonus, or continued employment on an employee agreeing to sign a release of a claim or right under the FEHA. This provision does not apply to negotiated settlements to resolve underlying claims that have been filed in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process.[xxx]

Governing such negotiated settlements, the Legislature also passed SB 820, codified as new Code of Civil Procedure § 1001.  This statute voids any settlement agreement entered into on or after January 1, 2019 that prevents disclosure of factual information about claims of sexual assault, sexual harassment, or harassment or discrimination based on sex.  This provision goes to one of the animating ideas of the #metoo movement: when victims speak out, other victims are emboldened to tell their stories.

It is worth emphasizing that this provision does not simply void that provision of an agreement; if the employee is preventing from disclosing factual information, the entire agreement is void.  This legislature could be a have the effect of precluding many settlements, especially where the facts are in dispute.  An employer who feels he or she is wrongly accused may prefer to litigate to clear his or her name rather than enter into a settlement that would allow the plaintiff to publicize “factual” information that would be damaging to the employer’s reputation.  Although the legislation does not expressly ban non-disparagement clauses, in many cases a non-disparagement clause would be futile, as the factual allegations are themselves damaging to the reputation of the accused.

Further, except where a public entity or public official is a party, section 1001 enables a claimant to request a provision that shields his or her identity and all facts that could lead to its discovery.  Other changes to the FEHA will also effect the disposition of sexual harassment cases.  AB 9 extends the statute of limitations from one year to three.[xxxi]  AB 51 prohibits conditioning any benefit of employment on agreeing to submit disputes to arbitration, which is perceived as a forum more favorable to employers.[xxxii]

While the #metoo movement has shined a newly bright light on an old problem, and while some of the legal particulars, particularly with respect to litigation and settlement, have been tweaked, the fundamentals are essentially the same.  Policy, training, and accountability remain the keys to reducing the occurrence sexual harassment in the workplace.