BILL ANALYSIS
AB 2889
Page 1
ASSEMBLY THIRD READING
AB 2889 (Laird)
As Amended May 10, 2004
Majority vote
JUDICIARY 7-3 LABOR AND EMPLOYMENT
6-2
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|Ayes:|Corbett, Jackson, Laird, |Ayes:|Koretz, Mullin, Lieber, |
| |Lieber, Montanez, | |Chu, Laird, Leno |
| |Steinberg, Frommer | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Pacheco, Bates, Spitzer |Nays:|Shirley Horton, Houston |
| | | | |
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APPROPRIATIONS 16-5
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|Ayes:|Chu, Berg, Calderon, | | |
| |Corbett, Correa, | | |
| |Firebaugh, Goldberg, | | |
| |Leno, Nation, Negrete | | |
| |McLeod, Oropeza, Pavley, | | |
| |Ridley-Thomas, Wesson, | | |
| |Wiggins, Yee | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Runner, Bates, Daucher, | | |
| |Haynes, Keene | | |
| | | | |
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SUMMARY : Seeks to close the loop hole in current law that
provides less protection for victims of racial, disability,
religious and other forms of harassment than for victims of
sexual harassment in so-called "third party" (customer or
client) harassment cases. Specifically, this bill :
1)Clarifies language in the Fair Employment and Housing Act
(FEHA) to ensure that under state law employers may be
potentially liable for all of the protected forms of
harassment, including not just sexual harassment but racial,
disability, religious, and other types of harassment, that are
committed against their workers by clients, customers and
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other third parties, when they knew or should have known of
the harassment, and failed to make reasonable efforts to stop
it.
2)Continues in place the proviso requested by business
organizations last year that ensures that in these third party
harassment cases, California law makes clear that the degree
(or lack of thereof) of the employer's ability to control the
improper conduct of third parties such as customers or clients
who harass their employees shall be appropriately taken into
account when fact finders consider whether there should be any
liability assessed the employer.
3)Effectively brings state law in line with the broader
protections provided under federal law so that California
workers are not afforded less protection against third party
harassment than they receive under federal law.
EXISTING LAW :
1)Makes it an unlawful employment practice, under FEHA, for an
employer or other covered entity to harass an employee or
other covered individual because of race, religious creed,
color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age or
sexual orientation.
2)Provides under long-standing statutory law that harassment of
an employee or other covered individual by another employee
(other than an agent or supervisor) is unlawful only if the
employer knew or should have known of the conduct, and failed
to take immediate and appropriate corrective action.
3)Provides, pursuant to AB 76's [AB 76 (Corbett), Chapter 671,
Statutes of 2003] clarification last year, that an employer
has always been potentially liable for the harassment
perpetrated by non-employee third parties against its
employees pursuant to the state's Fair Employment and Housing
Act. However such potential liability may only occur when the
employer, or its agents or supervisors, knows or should have
known of the conduct, and fails to take immediate and
appropriate corrective action. In addition, in these
so-called third party harassment cases, the law explicitly
makes clear that the extent of the employer's control, and any
other legal responsibility which the employer may have with
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respect to the conduct of those non-employees, shall be
considered.
4)Requires employers in California to seek to prevent all
harassment in the workplace by taking "all reasonable steps to
prevent harassment from occurring."
5)Requires employers to take "a very dim view of all forms of
harassment, whether by supervisors or others." ( Carrisales v.
Department of Corrections (1999) 21 Cal.4th 1132, 1139
(emphasis added.))
6)Contains, in the uncodified preamble to FEHA since 1984, the
Legislature's intent that "employers be required to establish
affirmative programs . . . so that work sites will be
maintained free from prohibited harassment and discrimination
by . . . [employers'] . . . agents, administrators, and
supervisors as well as by their non-supervisors and
clientele."
FISCAL EFFECT : According to the Assembly Appropriations
analysis, minor absorbable costs to the Department of Fair
Employment and Housing.
COMMENTS : This bill seeks to close the loop hole in current law
that provides less protection for victims of racial, disability,
religious and other forms of harassment than for victims of
sexual harassment in so-called "third party" harassment cases.
In support of this bill, the author states:
Chairwoman Corbett's measure last year made clear once
and for all that workers in California are protected
from serious harassment by customers, clients and
others when their employers knew or should have known
of the harassment and failed to take reasonable steps
to halt it. Her AB 76 was a critically important civil
rights measure about which we should all be very proud.
However since that time it has become clear that an
anomaly may have been inadvertently created when some
businesses last year insisted that AB 76's protections
be expressly limited to sexual harassment only. This
political demand created the potential for an
unprecedented "hierarchy" of harassment protections
favoring sexual harassment over other serious forms of
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hate-based behavior including racial, sexual
orientation, religious, color, national origin,
ancestry, disability, medical condition, age, and
marital status harassment. This bill clears up that
unacceptable anomaly and "equalizes" worker
protections against all forms of harassment, regardless
of the type of harassment involved.
The federal cases appear clear in their conclusion that an
employer may be held liable for a non-employee's harassment of
an employee, if the employer fails to remedy or prevent a
hostile or offensive work environment which management-level
employees knew, or in the exercise of reasonable care should
have known, existed. Some opponents of this bill, however,
suggest that federal law, as interpreted by federal courts and
the federal Equal Employment Opportunity Commission (EEOC), only
protects workers from sexual harassment in third party
harassment cases and not other forms of harassment. However a
review of the pertinent federal case law and EEOC regulations
suggests opponents' claims are ill-founded, that, to the
contrary, federal regulations and court cases do indeed hold
that employers may be held liable for third party harassment
other than sexual harassment. In addition, leading California
practice guides on employment law have long stated that an
employer may be held liable for harassment of its employees by
non-employees, when the employer fails to take reasonable steps
to prevent the harassment - without noting any limitation as to
whether such protections are limited to sexual harassment.
In support of this bill the author states to the Judiciary
Committee that it may be helpful, in light of the confusion that
has been thrust at this bill and at AB 76 last year, to recall
that neither bill creates strict liability on the part of
employers. The test for employer liability continues to be what
has always been, one of reasonableness. Did the employer take
reasonable steps, once it knew or should have known the
harassment was occurring, to stop it from reoccurring? Nor does
this bill change existing law as to what constitutes harassment.
Employees still will not be able to sue their employers for
minor workplace annoyances. In order for there to be liability
under AB 76 or this bill, the alleged harassment must be
sufficiently severe or pervasive that it produces a hostile
working environment. In short, under this bill, employers are
not now and will not be held liable for insignificant, one-time
events that they could not have anticipated or prevented.
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Finally, the author notes, contrary to the claims made by some
business opponents of the bill, the measure will not hold an
employer liable for any actions of a client, customer, or
"passer-by." Rather, the author points out, the bill only holds
an employer liable for its own action or inaction, and then and
only then when the employer knew or should have known of the
illegal harassment occurring against one of its employees and it
failed to take reasonable action to prevent it from occurring.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
FN: 0005206