BILL ANALYSIS
AB 76
Page 1
REPLACE
ASSEMBLY THIRD READING
AB 76 (Corbett)
As Amended March 11, 2003
Majority vote
JUDICIARY 11-3 LABOR & EMPLOYMENT
6-2
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|Ayes:|Corbett, Dutra, Hancock, |Ayes:|Koretz, Mullin, Chu, |
| |Jackson, Laird, | |Hancock, Laird, Negrete |
| |Longville, Lieber, | |McLeod |
| |Spitzer, Steinberg, | | |
| |Vargas, Nunez | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Harman, Bates, Pacheco |Nays:|Shirley Horton, Houston |
| | | | |
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APPROPRIATIONS 19-6
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|Ayes:|Steinberg, Berg, | | |
| |Calderon, Cohn, Corbett, | | |
| |Correa, Diaz, Firebaugh, | | |
| |Goldberg, Leno, | | |
| |Maldonado, Nation, | | |
| |Negrete McLeod, Nunez, | | |
| |Pavley, Ridley-Thomas, | | |
| |Laird, Wiggins, Yee | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bates, Daucher, Haynes, | | |
| |Pacheco, Runner, | | |
| |Samuelian | | |
| | | | |
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SUMMARY : Invalidates a 2002 court of appeal decision which held
workers in California are not protected against workplace
harassment perpetrated by customers, vendors, and other third
parties. Specifically, this bill :
1)Clarifies language in the Fair Employment and Housing Act
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(FEHA) to ensure that under state law employers may
potentially be liable for harassment committed against their
workers by clients, customers and other third parties if they
knew or should have known of the harassment, and failed to
take immediate and appropriate corrective action to stop the
harassment.
2)Effectively invalidates the court of appeal decision last year
of Salazar v. Diversified Paratransit, Inc ., 103 Cal. App. 4th
131 (2002).
3)Ensures that California's discrimination law is not weaker
than federal regarding workplace protections for employees
facing harassment by customers and other third parties.
FISCAL EFFECT : According to the Assembly Appropriations
analysis, minor, absorbable costs to the Department of Fair
Employment and Housing (DFEH).
COMMENTS : This bill is sponsored by the California Labor
Federation and the California chapter of the National
Organization for Women. This bill addresses a critical question
surrounding workplace protections against sexual and other forms
of harassment: whether or not the state's principal
anti-harassment law imposes a duty on an employer to take
reasonable steps to prevent its employees from being harassed in
the workplace by clients, customers, or other non-employees. In
so doing, this bill seeks to invalidate the recent court
decision in Salazar , a case that shocked many employment law
experts when it held that the Legislature did not intend the
state's FEHA to hold employers potentially responsible for
protecting their workers from sexual or other forms of
harassment if such harassment was committed by outside parties
in the workplace.
In the majority opinion, a sharply divided court of appeal
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. This recent court decision was
a dramatic departure from the view shared by legal experts in
California.
In the 2-1 decision in Salazar , Presiding Justice Joan Dempsey
Klein vociferously dissented, stating that the majority's
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opinion makes no sense as a matter of statutory construction,
and does serious damage to the fundamental policies which
California's key anti-harassment law was intended to further.
Indeed, Justice Klein noted that the employer forced the victim
in that case, Ms. Salazar, over her protests and as a condition
of her continued employment, to interact with the client in
circumstances where Ms. Salazar was ultimately forced to be
sexually exposed to a client of the business for whom she
worked. "Thus," wrote Justice Klein, "the very powerlessness
that underlies so much of our anti-harassment law was directly
implicated by the circumstances of her case. It obviously made
no difference to Ms. Salazar whether the threat to her safety
came from a fellow employee, or from a client or anyone else
with whom she was required to interact."
The uncodified preamble to FEHA has for almost 20 years stated
legislative 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, 1, emphasis added.) Supporters of this
bill, in addition to Presiding Justice Klein in her dissent in
Salazar , suggest this language should put a quick end to the
question whether the Legislature intended to cover third party
harassment under FEHA. DFEH does now and has long considered
such cases against third parties covered under the umbrella of
FEHA.
There appears to be little dispute that enactment of this bill
will ensure that state anti-harassment law in this area is
consistent with the federal approach to third party harassment.
The converse is of course also true: if the Salazar case is
permitted to stand, California law in this area will be less
worker-protective than federal law. The federal cases are
virtually unanimous in their conclusion that an employer may be
held liable for a non-employee's sexual 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. Leading California practice guides on employment law
also state 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.
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Although the Salazar case was recently accepted by the
California Supreme Court for consideration later this fall, and
therefore is not presently viable law, enactment of this
legislation would put to rest any question of legislative intent
raised in the case.
The enactment of this bill will not change existing law that
holds employers strictly liable for the sexual harassment of
employees (or applicants) by supervisors or agents. [ Doe v.
Capital Cities (1996); Murillo v. Rite Stuff Foods, Inc. (1998)]
It is immaterial whether the employer knew or should have known
of the supervisor or agent's harassment and failed to intervene.
[ Weeks v. Baker & McKenzie (1998); Kelly-Zurian v. Wohl Shoe
Co., Inc. (1994)]
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN:
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