California Government Code Section 12923 Broadens the Definition of Harassment and Makes it More Difficult to Dismiss and Settle Claims

 

California Government Code Section 12923 (“Section 12923”), effective January 2019, strengthens the already employee-protective laws in California.  Section 12923, amongst other things, codifies the Legislature’s intent with respect to application of California’s harassment laws, resulting in a broad definition of harassment and severely limiting a defendant’s ability to defeat harassment claims through motion practice, making it more likely a disgruntled employee will be able to proceed to trial absent settlement.

 

Broad Definition of Harassment – Section 12923(a)

 

Harassment includes verbal, physical, or visual conduct that is sufficiently severe or pervasive to alter the conditions of employment and create an objectively abusive work environment.  CCR § 11019(b)(1); see e.g. Cozzi v. County of Marin, 787 F. Supp. 2d 1047, 1069 (N.D. Cal. 2011).  The critical issue in harassment cases often turns on whether the alleged conduct was “sufficiently severe or persuasive” to be actionable, and courts have been inconsistent in how they have interpreted this language.  Section 12923 clarifies the Legislature’s intent that the definition of harassment includes conduct that: 

 

“sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere[s] with and undermine[s] the victim’s personal sense of well-being.”

 

Further, the Legislature specifically adopts Justice Ruth Bader Ginsberg’s objective standard set forth in her concurrence in Harris v. Forklift Systems, 510 U.S. 17 (1993), which holds that “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.  It suffices to prove that a reasonable person subjected to the discriminatory conduct would find . . . that the harassment so altered working conditions as to make it more difficult to do the job.” 

 

Though the goal of this statute is clarity, in the coming months the broad language used in the statute likely will result in courts grappling with how to apply this lengthy and broad definition of harassment to prior precedent.  For example, Etter v. Veriflo Corp., 67 Cal. App. 4th 457, 464 (1998) held that: “trivial or occasional, sporadic, or isolated incidents of verbal abuse” were not sufficiently severe or pervasive to rise to the level of harassment.  However, an employee may rely on Section 12923 to argue that such isolated or sporadic incidents nonetheless disrupted his or her “emotional tranquility” or “otherwise interfere[s] with and undermine[s] the victim’s personal sense of wellbeing.”  In the coming months, courts will wrestle with whether Section 12923 implicitly overrules or modifies the holding in Etter or other similar cases.  No courts have substantively cited Section 12923 since it became effective in January, but many practitioners are anticipating that the language in the statute will expand harassment claims to a wider array of conduct.  As the Legislature states in Section 12923(a), “provid[ing] all Californians with an equal opportunity to succeed in the workplace” is important, and to that end Section 12923 is useful for victims.  To the extent employees take unfair advantage of the additional protection provided in Section 12932, the statute may result in more frivolous claims. 

 

Limited Evidence of Harassment is Sufficient to State a Claim, Making Summary Judgment of Harassment Claims Much Less Likely – Sections 12932(b),(c),(e)

 

When faced with a frivolous lawsuit, summary judgment is a key strategy for early case dismissal.  Summary judgment has always been difficult for fact intensive harassment claims, but it was possible under the right circumstances.  There was precedent that a single incident of harassment may not be sufficient to make out a claim if the employer took prompt action in response.  Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000).  Further, though California state courts rejected a strict interpretation of the federal “stray remarks” doctrine, which states that “statements that nondecision makers make or that decision makers make outside of the decisional process, are deemed ‘stray,’ and are irrelevant and insufficient to avoid summary judgment,” employers still tried to undercut “stray remarks” evidence when attempting a summary judgment motion, in particular if it was the only evidence available.  See Reid v. Google, Inc., 50 Cal. 4th 512, 516 (2019).     

 

Now, Section 12932 all but eliminates the possibility of summary judgment in a harassment claim by:

 

• Confirming the stray remarks doctrine is not applicable in California state court and affirming that remarks uttered by a nondecisionmaker are relevant, circumstantial evidence of discrimination;

• stating a single incident of harassing conduct sufficient to create a triable issue of fact, specifically rejecting ; and

• stating “harassment cases are appropriate for disposition on summary judgment” (emphasis added). 

 

Section 12923 cites approvingly to Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 286 (2009), which cautions that employment matters which involve “issues of intent, and motive, and hostile working environment” are issues “not determinable on paper,” and therefore inappropriate for summary judgment.  

 

Since almost every case has at least a shred of evidence which, if given credence, supports a claim, even if it is just plaintiff’s own self-serving testimony, Section 12923 makes it highly unlikely that a defendant could successfully bring a summary judgment motion.  The good news is that the great debate over whether or not to bring a summary judgment motion in a harassment case, and the requisite time and money that goes into that analysis, likely will be a much shorter and less costly discussion for cases brought under California law.  The bad news is that harassment cases very likely will either result in a settlement or trial, with a previously viable interim method of dismissal - summary judgment - no longer available except in the very rare case.   

 

Recommendations to Mitigate Risk

 

In light of the above changes, once an employee or former employee files a lawsuit involving harassment claims, early resolution may be challenging.  Plaintiffs can file suit with little risk of summary judgment disposing of their harassment claim, knowing that the cost of defense will be high and likely increasing early settlement demands.  The best way to mitigate the risk of costly litigation is through effective policies, procedures, and training to avoid litigation in the first place.  We recommend:

 

• Maintaining clear and up to date harassment policies that are in compliance with all applicable laws.  The laws do change so it is important to review and revise these policies regularly and seek counsel to confirm they are complete and up to date. 

 

• Ensure all employees are made aware of and reminded of the harassment policies available for their protection.  Do not bury the policies in a lengthy document that will not be reviewed.  They should be prominent and easy to find, and employees should periodically be reminded that they exist.

 

• Ensure all employees are properly trained on workplace harassment as required under California law, including the recently enacted California Government Code Section 12950.1, which requires that by January 1, 2020:  “any employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of their assumption of a position.”  Employers not only need to ensure such training is available, but must confirm that employees complete these training requirements.   

 

• When a claim is raised, take it seriously and act promptly to conduct a thorough independent investigation.  Take meaningful corrective action if appropriate, even if the conduct does not rise to the level of a policy violation or unlawful harassment.  The goal is to stop unlawful conduct before it starts and train employees to understand and engage in constructive and respectful conduct.  Make sure the complaining employee has an opportunity to truly feel heard.  Also think about whether an internal employee, such as your Human Resources manager, can be truly independent in any investigation given relationships in the company, including reporting relationships.  A qualified outside investigator may be needed to ensure that an independent and objective investigation is performed.