On October 15, 2017, the #MeToo movement began in earnest following a tweet by actress Alyssa Milano. To commemorate the one-year anniversary of the #MeToo movement, the Orrick Employment Law and Litigation Blog will analyze the effects of the movement from the employment perspective. Part 1 below looks at the movement’s impact on sexual harassment claims in the workplace, Part 2 focuses on the legislative reaction to the movement, and Part 3 discusses how employers have responded to #MeToo.
In tandem with the growing #MeToo movement, sexual harassment appears to be top of mind for California legislators in 2018. In the wake of Harvey Weinstein, Bill Cosby and the like, California has been flooded with an unprecedented number of bills aimed at combatting sexual harassment. The 20+ pending bills take on topics ranging from confidentiality provisions to increased mandatory harassment training. Now more than ever, employers must pay heed to how sexual harassment issues are handled at their companies. Here are the highlights from the top 10 bills that – if passed – will most likely impact employers:
Senate Bill 820 would prohibit settlement agreement provisions that prevent the disclosure of facts related to claims of sexual assault, sexual harassment or sex discrimination cases. Otherwise known as the STAND (Stand Together Against Non-Disclosures) Act, the bill would apply to agreements entered into after January 1, 2019 and would create an exception where a complainant requests a nondisclosure provision (unless the defendant is a government agency or public official, in which case the exception would not be available). The STAND Act passed the Senate Judiciary Committee on May 1, 2018 with a vote of 5-1, and is now headed to a full vote in the Senate. Assembly Bill 3057 contains similar prohibitions, and is currently in the Assembly Appropriations Committee. READ MORE
Plaintiff Lynne Coates filed a class action lawsuit against Farmers on April 29, 2015 alleging gender discrimination claims under Title VII and California’s Fair Employment and Housing Act, including violations of the federal and California equal pay acts and California’s Private Attorneys General Act. In this post on Orrick’s Equal Pay Pulse blog, Orrick attorneys Erin Connell, Allison Riechert Giese and Megan Lawson examine Coates v. Farmers and what it means for employers as well as future equal pay claims in California.
In an issue of first impression, the California Court of Appeals held that employers have a duty under California’s Fair Employment and Housing Act (FEHA) to provide reasonable accommodations to an applicant or employee who is associated with a disabled person, even if the employee is not disabled. Castro-Ramirez v. Dependable Highway Express, Inc. No. B261165, 2016 Cal. App. LEXIS 255 (Cal. Ct. App. April 4, 2016). This holding confirms that FEHA provides broader protections for employees associated with a disabled person than the federal Americans with Disabilities Act (ADA), which does not contain the same requirement.
Three months after the California Fair Pay Act took effect on January 1, 2016, the California Division of Labor Standards Enforcement (“DLSE”) has issued answers to FAQs about the new law, which by all counts is the most employee-friendly equal pay law in the nation. But for California employers who anxiously have been awaiting official guidance on the Act’s many new terms and standards, the FAQs provide little satisfaction. Rather, they focus more on informing employees on how to bring a claim. Nor has the DLSE otherwise spoken publicly about how it plans to enforce the new law; instead, the agency appears to be taking its time and exercising caution as it potentially sets the stage for the rest of the nation.
The adage that “there is no rest for the weary” is perhaps an all too familiar one for California employers. Although employers might have already spent the past few months implementing a host of new laws that took effect in early 2016, there has been less fanfare about the upcoming regulatory amendments under the Fair Employment and Housing Act (“FEHA,” Cal. Govt. Code § 12900, et seq.) that go into effect April 1, 2016.
From coast to coast, as the calendar turned to 2016, a host of new employment laws became effective. States and local government are imposing broad obligations on employers well above what federal law requires. This patchwork of legal requirements will continue to bedevil employers. As you begin implementing your resolutions for 2016, here’s our take on the major changes that went into effect across the nation last week:
The California legislature played an active role in 2015 by enacting new rules and amendments in many employment areas. The following covers some of the key highlights, some of which became effective on January 1, 2016.
On May 4, 2015, the California Supreme Court issued its decision in Williams v. Chino Valley Independent Fire District, holding that unsuccessful FEHA plaintiffs should not be ordered to pay the defendant’s ordinary litigation costs unless, “plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit” (also called “the Christianburg standard”). (2015) 61 Cal. 4th 97, 99-100. Prior to Williams, the Christianburg standard applied when defendants sought attorneys’ fees after prevailing on the merits of a FEHA claim, but there was a split in authority regarding whether the higher threshold in Christianburg applied to awards of ordinary costs under California Code of Civil Procedure section 1032. Williams resolved the split and held that FEHA constitutes an exception to section 1032 and that defendants must meet the higher threshold in Christianburg before the court can exercise its discretion in awarding costs.
Employers often encounter challenging questions regarding their duty to accommodate employees who are diagnosed with stress, anxiety, or other mental health conditions that allegedly impact job performance absent accommodation. But what if an employee claims that the stress of working with a particular supervisor is disabling, and that a transfer is the only reasonable accommodation? The California Court of Appeal has provided some measure of clarity, in a recent opinion holding that anxiety and stress claimed by an employee as a result of working under a particular supervisor does not constitute a disability under California’s Fair Employment and Housing Act (FEHA). Higgins-Williams v. Sutter Med. Found., Case No. C073677 (May 26, 2015).