Employer Liability for Harassment of Employee by Customers or Others Expanded
Tuesday, Feb. 4, 2020
By Langenkamp, Curtis, Price, Lindstrom & Chevedden, LLP
Senate Bill 1300 signed into law on September 30, 2018, effective January 1, 2019, expands an employers’ responsibility for illegal harassment by nonemployees, such as customers or students. Under the California Fair Employment and Housing Act (FEHA), it is unlawful for an employer to engage in harassment of an employee or other specified person. An employer could also be responsible for harassment by an employee by others, if the employer knows or should have known of the harassing conduct and fails to take immediate and appropriate corrective action. Further, an employer could be responsible for acts made by nonemployees if the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action, but employers argued that this liability for the acts of customers or students was limited to sexual harassment only.
SB 1300 expanded an employer’s liability for nonemployee harassing conduct from sexual harassment to any type of harassment prohibited under FEHA, including sexual orientation discrimination, gender discrimination and disability discrimination.
The bill also, with limited exceptions, prohibits employers from requiring a release of a claim or right under FEHA, or from requiring an employee to sign a nondisparagement agreement or any document that would deny an employee the right to disclose information about unlawful acts in the workplace, in exchange for a raise or bonus or as a condition of employment. The bill also allows for employers to provide bystander intervention training to their employees, and it limits the fees and costs awarded to a prevailing defendant for only when the court finds that the action brought forth was frivolous, unreasonable, or groundless.