A California Chamber of Commerce-opposed bill creating another pathway of costly litigation against employers won approval by two Senate policy committees this week.
It imposes additional and conflicting mandates on employers regarding sexual harassment and other issues that already are protected under the Fair Employment and Housing Act (FEHA).
Confusion, Expanded Liability
Sexual harassment is defined as a form of discrimination based on sex/gender (including pregnancy, childbirth, or related medical conditions), gender identity, gender expression, or sexual orientation. The Department of Fair Employment and Housing (DFEH) is the regulatory agency that enforces FEHA and oversees workplace discrimination, harassment and retaliation issues.
AB 3081, however, places additional, often duplicative, sexual harassment protections and training requirements in the Labor Code. These provisions are completely misplaced, leaving the employer in the position of having to decipher and comply with two potentially conflicting statutes.
In addition, the Labor Commissioner and DFEH would have the authority to simultaneously promulgate separate and potentially conflicting regulations. This would lead to tremendous confusion for employers who are trying to comply with the law.
Single, Awkward Glance
Per AB 3081, an employee can claim job-protected leave for any allegation of sexual harassment. Sexual harassment (unlike sexual assault, domestic violence or stalking) is very broadly defined.
DFEH and the courts determine what constitutes actionable sexual harassment. Although certain actions involving sexual harassment may be inappropriate, the behavior must be severe or pervasive enough to alter the conditions of the work environment to be unlawful. This is because the court should not be involved in every workplace dispute involving even an awkward glance.
However, AB 3081 does not require a determination of whether the behavior is unlawful sexual harassment before the employee can take job-protected leave. The alleged sexual harassment does not even need to occur in the workplace or involve co-workers for this leave to apply.
Thus, because of the broad definition of sexual harassment and no legal determination requirement, an employee can utilize a protected leave of absence simply because a co-worker made one, tasteless joke or someone accidently brushed up against him or her. While this behavior may be inappropriate, it is not actionable and should not be the basis for a protected leave of absence—especially in comparison to the type of harm suffered by victims of sexual assault, domestic violence and stalking who are provided job-protected leave under current law.
Ripe for Abuse
AB 3081 extends employment protections to immediate family members of the victim. The employee could claim job-protected leave and the employee’s immediate family member also could take job-protected leave. This type of leave is clearly ripe for abuse.
California already provides leaves of absence for family members and is recognized by the National Conference of State Legislatures as one of the most family-friendly states. Imposing another leave of absence is unnecessary and overly burdensome because family members can take time off by utilizing other types of leave.
Extends Statute of Limitations
AB 3081 contradicts the current statute of limitations prescribed by FEHA for sexual harassment. For an individual to file a discrimination, harassment or retaliation complaint in civil court, he/she must first exhaust his/her administrative remedy by filing a claim with the DFEH. The current statute of limitations for filing a claim with DFEH is one year from the most recent harassing or discriminatory event.
AB 3081 not only triples the statute of limitations for sexual harassment complaints, but also provides the Labor Commissioner with jurisdiction over these complaints. Jurisdiction over sexual harassment complaints should remain with DFEH to prevent confusion and contradictory regulations.
Unfair, Rebuttable Presumption
Under AB 3081, it is presumed that an employer retaliated against an employee if the employer takes any corrective action within 90 days of an employee’s complaint or opposition to an employer’s practice or policy regarding sexual harassment.
Given this provision, if an employee who files a claim for sexual harassment is caught stealing the next day and immediately terminated, the employee will be protected under this automatic, rebuttable presumption. The burden will fall on the employer to prove its actions were valid, instead of the burden falling on the employee.
Statutory Joint Liability
There is no basis under which a business that contracts for services should be deemed statutorily liable for sexual harassment or sexual discrimination when there is absolutely no way in which that contractor can engage or force the labor contract company to comply with provisions of FEHA or the Labor Code.
Moreover, this statutory mandate ignores and disrupts current law that already provides liability for sexual harassment claims in relation to third party relationships.
Current law already provides an adequate pathway for civil liability for a business that is actually controlling the employees of another, and there is no basis for that analysis to be completely disregarded under this bill.