Mcle Self-study: #metoo Movement Inspires Changes in California's Sexual Harassment Law: Sb 1300

• Citation: Vol. 33 No. 2
• Publication year: 2019
• Author: By Mariko Yoshihara

MCLE Self-Study: #MeToo Movement Inspires Changes in California's Sexual Harassment Law: SB 1300

By Mariko Yoshihara

Mariko Yoshihara has been the Policy Director and Legislative Counsel for the California Employment Lawyers Association since 2010. Last year, she helped pass comprehensive sexual harassment reform measures, including SB 1300. She also helped pass the landmark Fair Pay Act in 2015 and the New Parent Leave Act in 2018. Before joining CELA, Ms. Yoshihara worked for Assembly Member Fuentes as a legislative aide. She graduated cum laude from UC Hastings College of the Law in 2008,

Introduction

Just over a year ago, actress Alyssa Milano ignited the powerful #MeToo movement on Twitter, using the hashtag originally created by Tarana Burke in 2006 to raise awareness about sexual violence. Within weeks, the voices and stories of women and people of all genders, saying #MeToo, exposed the rampant and pervasive culture of sexual harassment infecting nearly every industry.

The #MeToo movement galvanized legislatures across the nation to strengthen laws prohibiting sexual harassment. Here in California, the Legislature introduced over two dozen bills to address systemic workplace harassment. By the close of last year's legislative session, 17 of those bills made it to the Governor's desk and 12 were signed into law.¹

One of the most significant bills enacted last year was SB 1300, a sexual harassment omnibus bill the California Employment Lawyers Association and Equal Rights Advocates co-sponsored. This bill targeted certain gaps in the Fair Employment and Housing Act (FEHA) that-according to the bill sponsors—denied justice to some sexual harassment victims, permitted sexual predators to evade its reaches, and generally allowed workplace sexual harassment to persist. SB 1300 addresses these gaps by enacting several important reforms.

"Severe or Pervasive" Legal Standard

SB 1300 provides statutory guidance on the "severe or pervasive" legal standard for sexual harassment claims, to help ensure courts apply it consistently and fairly to protect sexual harassment victims. In several cases, courts have misconstrued the "severe or pervasive" standard, with the result that workers have been prevented from having their day in court, which of course is contrary to FEHA's remedial purpose. For example, in Brooks v. City of San Mateo,² the plaintiff, Patricia Brooks, a 911 dispatcher, was responding to a 911 call when her coworker, a senior dispatcher, "placed his hand on her stomach and commented on its softness and sexiness." After telling him to stop, he "forced his hand underneath her sweater and bra to fondle her bare breast."³ The coworker eventually served a jail sentence for sexual assault, but when Brooks' civil sexual harassment claim reached the court, the judge granted summary judgment in favor of the defendant and a jury never heard Brooks' case. The judge ruled the conduct was not severe enough to give rise to a hostile work environment claim. Brooks appealed to the 9th Circuit Court of Appeals, where, in a decision former Judge Alex Kozinski notably authored, the 9th Circuit affirmed the lower court's decision, emphasizing that Brooks suffered only a single incident that took place over a matter of minutes.

SB 1300 corrects this erroneous application of our anti-harassment laws by explicitly rejecting the 9th Circuit's opinion in Brooks and prohibiting its use in determining whether conduct is sufficiently severe or pervasive to constitute a FEHA violation. Further, the bill makes clear that "in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. Rather, 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."⁴

SB 1300 also helps ensure courts will examine the totality of the circumstances in determining whether harassing conduct was severe or pervasive, advising that a discriminatory remark, even if made outside the context of an employment decision or uttered by a non-decision-maker, may be relevant, circumstantial evidence of discrimination.⁵ In addition, the bill clarifies that the legal standard...