BILL ANALYSIS
AB 76
Page 1
Date of Hearing: March 19, 2003
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Paul Koretz, Chair
AB 76 (Corbett) - As Amended: March 11, 2003
SUBJECT : Employment discrimination.
SUMMARY : Protects California employees from harassment by
clients, customers, and other non-employee third parties of
their employer. Specifically, this bill:
1)Clarifies language in existing law to ensure that it is an
unlawful practice under the Fair Employment and Housing Act
(FEHA) for an employer or other covered entity to fail to take
immediate and appropriate corrective action to prevent
harassment of an employee by any person, once the employer
knows or should have known of the harassment.
2)Effectively invalidates a recent court of appeal decision in
Salazar v. Diversified Paratransit, Inc. , (2002) 103
Cal.App.4th 131 ( Salazar ), which held that employers are not
required under FEHA to take reasonable steps to protect their
employees from harassment perpetrated by the employer's
customers or clients.
3)Declares that it is the intent of the Legislature in enacting
this act to construe and clarify the meaning and effect of
existing law and to reject the interpretation given to the law
in the Salazar decision.
EXISTING LAW
1)Makes it an unlawful practice for an employer or other covered
entity to harass any employee because of race, religious
creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex,
age, or sexual orientation.
2)Provides that harassment of an employee or other covered
individual by an employee other than an agent or supervisor is
unlawful if the employer knew or should have known of the
conduct and failed to take immediate and appropriate
corrective action, and requires California employers to seek
to prevent all harassment in the workplace by taking all
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reasonable steps to prevent harassment from occurring.
FISCAL EFFECT : Unknown
COMMENTS : In October 2002, the Second District Court of Appeal
decided the case of Salazar v. Diversified Paratransit, Inc. In
that decision, the court concluded that although the FEHA
created an affirmative duty requiring employers to prevent
workplace harassment, that duty was intended to extend solely to
such harassment committed by the employer's employees,
supervisors and agents. The majority therefore concluded that,
regardless of how egregious the harassment or the employer's
actual knowledge of it, the employer's duty to prevent
harassment did not extend to harassment by the employer's
customers or clients. The California Supreme Court recently
agreed to review the Court of Appeal's ruling in Salazar .
The author of this bill and supporters argue that the Salazar
decision was largely based on a mistaken interpretation of
legislative intent, and it sends a chilling and dangerous
message to California employers that they need to do nothing to
protect their employees from harmful harassment, even when they
know or should have known that their employees are being
harassed. Employers should not condone, and employees should
not be forced to endure, harassment on the job, regardless of
the source of the harassing conduct.
Supporters also state that this bill restores California's
harassment protections for employees to the state of the law
before the Salazar case. Supporters point to the uncodified
preamble to the FEHA, which states 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."
(Statutes of 1984, Chapter 1754). Many employment law experts
assumed that employees were protected from such conduct under
California law. The bill has been amended to reflect the
Legislature's intent in enacting this act to construe and
clarify the meaning and effect of existing law and to reject the
interpretation given to the law in the Salazar decision.
Supporters also point out that this bill is consistent with
federal law, where a number of cases have determined that
employers may be held responsible for failing to protect their
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employees from such third party harassment under Title VII of
the federal Civil Rights Act. (See, e.g., Crist v. Focus Homes,
Inc. , (1997) 122 F.3d 1107, 1112. Therefore, supporters argue
that this bill is necessary to ensure that California's
anti-discrimination law is not weaker in this regard than its
federal counterpart.
Opponents, comprising the California Chamber of Commerce, other
employer groups and individual businesses, argue that California
employers should face a lower standard of liability for third
party harassment. Opponents state that, unlike employees whom
they control, they believe they have no control over third
parties with whom they do business, and consequently should at
most be potentially liable for such workplace harassment only if
they actually knew the employee was being harassed by a third
party and did not take immediate and appropriate steps to
prevent it.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFSCME)
Attorney General Bill Lockyer
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Employment Lawyers Association (CELA)
California Labor Federation (Co-Sponsor)
California National Organization for Women (Co-Sponsor)
California Professional Firefighters
California School Employees Association
California State Association of Electrical Workers
California State Employees Association
California State Pipe Trades Council
California Teachers Association
California Teamsters Public Affairs Council
Coalition of California Utility Employees
Commission on the Status of Women, State of California
Consumer Attorneys of California
International Association of Plumbing and Mechanical Workers
Service Employees International Union (SEIU)
The Lambda Letters Project
Western States Council of Sheet Metal Workers
AB 76
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Opposition
Automotive Aftermarket Services
California Apartment Association
California Association of Health Facilities
California Bankers Association
California Chamber of Commerce
California Grocers Association
California Manufacturers & Technology Association
Civil Justice Association of California
Motion Picture Association of America
National Federation of Independent Business
SBC
Analysis Prepared by : Benjamin M. Ebbink / L. & E. / (916)
319-2091