California Lawmakers Send More #MeToo Bills to Governor

California’s legal standard for sexual harassment would be tightened under a bill headed to the desk of Gov. Jerry Brown (D).

S.B. 1300 by Sen. Hannah-Beth Jackson (D) is one of six bills inspired by the #MeToo movement that California lawmakers approved in the final days of their 2018 session. The bills join others awaiting the governor’s action, including ones that would ban employers from using nondisclosure agreements and mandatory arbitration.

Brown hasn’t taken a position on the bills and has until Sept. 30 to sign or veto them.

Jackson said before her bill won its final legislative approval in the Senate Aug. 31 that it ends a “free pass on unlawful behavior” by finding that a single incident of harassment creates a triable issue in court.

No ‘One Free Grope’

The bill would close gaps in the law, for example, by stating that the Legislature rejects a 2000 federal appellate court ruling that said harassment must be severe or pervasive to violate state law, according to the bill’s supporters.

“We believe it is a perverse reading of our anti-harassment laws to give perpetrators ‘one free grope,’” the California Employment Lawyers Association and Equal Rights Advocates argued.

The bill also would bar employers from requiring employees to release claims under California’s Fair Employment and Housing Act in exchange for a raise or as a condition of employment. Employers also couldn’t require employees to sign non-disparagement agreements that keep them from disclosing illegal acts in the workplace.

Employers Opposed

Employer groups opposed the bill, though they softened their opposition after Jackson agreed in August to delete provisions requiring employers to take reasonable steps to prevent harassment and increase harassment prevention training. Opponents include the California Chamber of Commerce, California Hotel and Lodging Association, and the California Retailers Association.

“These provisions will significantly increase litigation against California employers and limit their ability to invest in their workforce,” the groups said in an Aug. 24 letter asking the California Assembly to reject the bill.

S.B. 1300 passed the Assembly 41-33 on Aug. 30. It won final passage with a 25-10 vote in the Senate Aug. 31 to concur in amendments made while the bill was in the lower chamber.

More Bills

Other bills sent to the governor that apply to employers and workplaces include:

• A.B. 1870 by Assemblywoman Eloise Gomez Reyes (D) to extend the statute of limitations from one to three years in which the state Department of Fair Employment and Housing could file a complaint related to unlawful discrimination or harassment, won a final vote of 61-9 in the Assembly Aug. 29;
• A.B. 2079 by Assemblywoman Lorena Gonzalez Fletcher (D) to set new requirements for sexual violence and harassment training for janitorial workers, won a final vote of 52-26 in the Assembly Aug. 30;
• S.B. 224 by Jackson to include elected officials, lobbyists, investors, and directors or producers to the types of business or professional relationships that are covered by the state’s laws against harassment, won a final vote of 78-0 in the Assembly Aug. 28; and
• S.B. 1343 by Sen. Holly Mitchell (D) to require employers of five or more workers, including non-supervisory employees, to provide sexual harassment training and that the DFEH develop an online training course, won a final vote of 39-0 in the Senate Aug. 31.

One bill that didn’t make it to a final vote was S.B. 1038 by Sen. Connie Leyva (D), which would have made individual employees jointly and separately liable along with their employers for retaliation against others for complaining about workplace harassment and discrimination. The bill was made inactive Aug. 27.

Another bill to require panic buttons for hotel workers stalled in committee in mid-August.

In-House Investigations

While lawmakers were passing bills that could change how employers and workers address sexual harassment and misconduct in the workplace, they also tackled the issue within their own hallways and offices.

Lawmakers are asking Brown to sign a bill to spend $1.5 million and establish a separate unit within the Legislature to investigate internal complaints of sexual harassment. The unit would be housed in the Office of Legislative Counsel, and investigations would no longer be conducted through the Senate and Assembly Rules Committees. The Legislative Counsel serves as the lawyer to the Legislature and mainly helps draft legislation.

The move is one of a series of changes lawmakers are attempting to make to change the culture at the Capitol.

Resigned, Admonished

Three members of the Legislature resigned between December 2017 and February 2018 for alleged sexual misconduct after more than 140 women who work in and around the Capitol signed an open letter alleging a pervasive culture of harassment and assault. The Senate and Assembly have since released results from internal investigations substantiating complaints against the members who resigned.

One other member—a former chair of the Legislative Women’s Caucus—is still being investigated and was stripped of her committee assignments for alleged harassment. Another was admonished for giving unwanted hugs, and most recently another was admonished for giving a woman an unwanted “noogie.”

The creation of a new investigations unit for sexual misconduct allegations is contained in S.B. 867, which lawmakers sent to the governor with a final vote of 38-0 in the Senate Aug. 30.

Lawmakers adjourned for the year at about midnight Aug. 31 and will convene for a new session in December.