Driven by the wave of publicity surrounding sexual harassment allegations against prominent artists, executives, news anchors, filmmakers and legislators, and the ensuing #MeToo movement, legislators in California and several other states recently have introduced bills designed to prevent such harassment. Below we summarize four bills introduced in the California Senate and Assembly in January 2018. Employer groups have not yet publicly mounted a challenge to any of these bills, and it is not possible to say which, if any, of these bills will move all the way through the legislative process and be signed into law by the Governor.
Date: Thursday, November 16, 2017
Time: 12:00 PM to 1:00 PM PST
Please join Hunton & Williams LLP for a complimentary webinar that will address current concerns faced by employers in California. This program, co-sponsored by Welch Consulting, will examine the following issues:
- Fair Pay issues
- Recent PAGA concerns
- “Ban the Box” and background checks
- Sick leave
- Changing local and regional ordinances
- Sexual harassment
We will also discuss ways to address potential risks proactively, including the use of statistical analyses to avoid future litigation.
We hope you can join us for what should be a very interesting and educational program.
Register by clicking here.
Questions? Contact Visalaya Hirunpidok at email@example.com or 213.532.2003.
Allegations of sexual harassment have been flooding the news headlines lately. Partners Emily Burkhardt Vicente and Amber Rogers discuss how these trends may impact employers and identify common sense strategies for minimizing the risk of harassment claims in the workplace. View the 5-minute video here.
California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct. Cal. Gov’t Code § 12940(k). In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations. The Guide, which is notable for its detailed explanation of workplace investigation procedures, can be accessed here.
On August 29, 2016, the U.S. Court of Appeals for the Second Circuit issued Vasquez v. Empress Ambulance Service, Inc., — F.3d —, No. 15-3239-CV, 2016 WL 4501673 (2d Cir. Aug. 29, 2016), holding that an employer may be held liable for a low-level employee’s animus under the cat’s paw theory of liability if the employer’s own negligence allows that animus to result in adverse employment action against another employee.
As is often the case, the coming new year brings a slate of new requirements for California employers to grapple with. Employers should have these developments on their radar to ensure compliance in 2015 and beyond.
Earlier this month, the Equal Employment Opportunity Commission released its fiscal year 2013 enforcement and litigation statistical report. Each year, the EEOC publishes a comprehensive set of data tables which contain statistics on topics such as numbers of charges filed, types of charges filed, litigation and resolution numbers, and a myriad of other tables that provide insight into the agency’s actions over the 12-month period.
Vance v. Ball State University: Narrow Definition of Supervisor in Harassment Suits
In Vance, the Supreme Court announced a narrow standard for determining which employees constitute “supervisors” for purposes of establishing vicarious liability under Title VII. In a 5-4 decision, the Court decided that a supervisor is a person authorized to take “tangible employment actions,” such as hiring, firing, promoting, demoting or reassigning employees to significantly different responsibilities. The majority opinion rejected the EEOC’s long-advanced definition that a supervisor is a person who could either make tangible employment actions or direct an employee’s daily work activities. In making this ruling, Justice Alito called the EEOC’s definition a “study in ambiguity.”
Last Monday, the United States Supreme Court heard oral argument in Vance v. Ball State University in order to resolve a circuit split over how much authority an alleged harasser must have to be considered a supervisor. The definition of supervisor is important because two earlier Supreme Court cases, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), establish that employers may be found vicariously or strictly liable for the conduct of supervisors who discriminate against or harass subordinate employees.
In an update to a recent article posted in July, the California Supreme Court agreed on October 10 to hear Patterson v. Domino’s Pizza, LLC, a sexual harassment case in which the court will decide whether a franchisor can be held liable for the acts of an employee of one of its franchisees. The case comes before the court after an appeals court found that Domino’s exerted enough control over the employees of Sui Juris, its franchisee, for it to be potentially liable for sexual harassment.
If the high court affirms the appellate court’s decision, franchisors could be vulnerable to a broader range of liability than they currently face.