September 23, 2019

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Coming Soon? Expanded Employment Protections for Victims of Sexual Harassment

In a continuing trend that began with the launch of the MeToo Movement, the California legislature recently passed Assembly Bill 171, another proposed law designed to expand safeguards for employees who have been the victims of sexual harassment. This latest measure follows California’s enactment of a new law in 2017, which, as we discussed in a previous article, requires that employers provide all new (and certain current) employees with an explanation of rights for victims of sexual assault and stalking.

Existing Protections for Victims of Domestic Violence, Sexual Assault, and Stalking

Under existing law, employers cannot discriminate or retaliate against an employee who is the victim of domestic violence, sexual assault, or stalking and who takes time off work to obtain specific relief because of that employee’s status as a victim of domestic violence, sexual assault, or stalking, provided the employee gives the employer notice of or the employer has actual knowledge of the status.

The Proposed Expansion to Cover Victims of Sexual Harassment

If enacted, A.B. 171 would expand these provisions in three ways, beginning July 1, 2020. First, the bill would prohibit an employer from discriminating or retaliating against an employee because of the employee’s status as a victim of sexual harassment (as defined in the Government Code). Second, A.B. 171 creates a rebuttable presumption of unlawful retaliation if an employer, within 90 days following the date the employee provides notice or when the employer has actual knowledge of the status, takes any adverse action against the employee. The bill allows for employers to rebut the presumption through evidence that the employer has a nonretaliatory business reason for the adverse action taken. Finally, the bill broadens the definition of “employer” to include, among others, the state, political subdivisions of the state, and municipalities.

A.B. 171 Supplements Existing Anti-Retaliation Provisions

At first blush, A.B. 171 may not appear that impactful (or necessary), particularly given that significant anti-retaliation provisions exist throughout the Labor Code and Government Code. But looks can be deceiving. A.B. 171 supplements the law’s existing protections in two critical ways.

First, and most importantly, A.B. 171 would relieve the victim of sexual harassment from having to disclose the harassment in order to be protected. That is because the bill provides protections to employees where the employee does not disclose the harassment, but the employer nonetheless knows about the sexual harassment. Second, the 90-day statutory presumption of unlawful retaliation that exists in the wake of a sexual harassment incident means that an employee does not need to establish a causal link between the adverse action and the employee’s status as a sexual harassment victim to state a prima facie case.

Instead, the new legislation presumes a causal link due to the proximity in time between when the employer learned that the employee was a sexual harassment victim and when the employer took adverse action. What this means is that the burden will fall on the employer to justify that its actions were valid, instead of falling on the employee to prove a discriminatory motive. In other words, under the existing version of A.B. 171, if an employee who files a claim for sexual harassment is caught stealing the next day and immediately terminated, the employee will be able to claim protection under A.B. 171’s automatic, rebuttable presumption.

Takeaways

Right now, employers do not need to take immediate action. A.B. 171 has passed in the Assembly, but it still must pass in the Senate before it will be sent to the Governor’s desk for enactment. The legislative process takes time, and employers should be using that head start to their advantage so that they are prepared to correctly handle hiring, firing, and other employment related decisions vis-à-vis victims of sexual harassment if A.B. 171 becomes law.

In the event A.B. 171 is enacted, employers must revise their employee handbooks so as to include an employee’s status as a sexual harassment victim within the categories of employees expressly protected from retaliation. In the same vein, employers should update their training programs to ensure that managers and supervisors are aware of the heightened protections available to sexual harassment victims.

Copyright © 2019, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Tyler Z. Bernstein Employment Attorney Sheppard Mullin
Associate

Tyler Z. Bernstein is an associate in the Labor and Employment Practice Group in the firm's Orange County office.

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