McGeorge Adjunct Professor Chris Micheli

Senate Bill 1300 was signed into law on September 30, 2018 as Chapter 955 and went into effect on January 1, 2019. The bill both adds and amends several sections of California’s Government Code and addresses the severe or pervasive standard for litigating sexual harassment claims. SB 1300 also prohibits employers from requiring employees to sign a release of claims under the Fair Employment and Housing Act (FEHA) in exchange for a raise or as a condition of employment.

By adding Section 12964.5 to the Government Code, SB 1300 specifies that an employer may be responsible for the acts of non-employees with respect to other types of harassment, not just sexual harassment. With certain specified exceptions the bill prohibits an employer in exchange for a raise or a bonus, or as a condition of employment, or continued employment from requiring the execution of a release of a claim or right under FEHA, or from requiring an employee to sign a non-disparagement agreement or some other document that purports to deny an employee the right to disclose information about unlawful acts in the workplace, including but not limited to sexual harassment.

The new law also added Government Code Section 12950.2, which reads, “An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behavior and to motivate bystanders to take action when they observe problematic behavior. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources that they can call upon to support that intervention.’’

SB 1300 also provides that a prevailing defendant is prohibited from being awarded attorney’s fees and costs unless the court finds that the action was frivolous, unreasonable, groundless when brought, or that the plaintiff continued to litigate after it clearly became so.

In Government Code Section 12923, SB 1300 makes five specific findings and declarations regarding the application of FEHA. It is important to note, however, that those statements of intent are only statements and do not make any changes to statutes. This means that courts might not give them much credence. We’ll have to wait and see how the courts interpret the statements of legislative intent in 2018’s SB 1300.

You can find a full transcript of today’s podcast here.

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