BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Richard Alarcon, Chair
Date of Hearing: July 9, 2003 2003-2004 Regular
Session
Consultant: Patrick W. Henning, Sr. Fiscal:Yes
Urgency:No
Bill No: AB 76
Author: Corbett
Amended: June 26, 2003
Subject:
Employment discrimination
Purpose:
To prohibit harassment of an employee in the workplace by a
person other than an employee, agent, or supervisor of the
employer. It is intended to invalidate a recent state
appellate court's ruling.
Analysis:
Existing law , the Fair Employment and Housing Act (FEHA),
makes it an unlawful employment practice for an employer,
supervisor, or its agents, to harass an employee because of
race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition,
marital status, sex, age, or sexual orientation.
Prior to recent case law , harassment by any person, other
than an agent or supervisor of the employer, was unlawful
if the employer knew or should have known of the conduct,
and failed to take immediate and appropriate corrective
action.[Government Code Section 12940(j)(1)]. In Salazar
v. Diversified Paratransit, Inc. [(2002) 103 Cal.App.4th
131] a state appellate court held that FEHA does not
protect an employee from harassment by a client or customer
of the employer.
This Bill would prohibit harassment of an employee in the
workplace by a person other than an employee, agent, or
supervisor of the employer. It is intended to invalidate
the appellate court's rulings in Salazar . Also, it would
specify that:
- in reviewing cases involving the acts of non-employees,
the extent of the employer's control and any other legal
responsibility which the employer may have with respect to
the conduct of those non-employees shall be considered.
- the Legislature's intent in enacting this bill would be
to construe and clarify the meaning and effect of existing
law and to reject the interpretation given to the law in
Salazar.
Comments:
1. Proponents argue that this measure would set the
record straight with regards to the original intent of the
Legislature when it enacted the anti-harassment in the
workplace statute in 1984 [SB 2012, Watson, Chapter 1754,
Statutes of 1984, Section 1]. It addresses a case where
female bus driver Raquel Salazar was forced to endure
serious and repeated harassment by a bus rider without her
employer taking reasonable steps to protect her. When Ms.
Salazar sought relief against her employer for the injuries
she suffered, the trial court, and subsequently the court
of appeal, held that no relief was available under the FEHA
and dismissed her case. The author's office calls this an
outrage for Ms. Salazar, and that the Legislature should
clearly specify the legislative intent of original statute.
2. History and Status of Case . For almost two decades,
FEHA had been implemented by the Department of Fair
Employment and Housing through regulations and directives,
providing guidelines to employers, both private and public,
on how to prevent harassment, and what corrective action
may be taken when harassment occurs. Courts have
interpreted and applied the statute to provide relief in
Hearing Date: July 9, 2003 AB
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Senate Committee on Labor and Industrial Relations
numerous cases.
Since Salazar , the California Supreme Court recently
granted review of the case. Also, the Fourth District
Court of Appeal, in Carter v. California Department of
Veterans Affairs , [2003 DJDAR 6009], recently issued the
same holding as Salazar.
3. Uncodified Preamble and the Majority Opinion . In the
uncodified preamble to SB 2012 of 1984 it stated 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 their non-supervisors and
clientele."
The Salazar majority invited the Legislature to set the
statute straight. "Although an uncodified 1984 preamble
[to SB 2012] stated an existing policy of maintaining work
sites free from prohibited harassment and discrimination by
clientele, the Legislature did not amend section 12940 to
translate that existing policy into statutory rights,
remedies, and liabilities. The Legislature, not this
court, should draft and enact statutes that define the
scope of employer liability." [ Salazar , supra, at 135.]
Among other things, the majority opinion traced the
legislative history of SB 2012 and concluded that since the
Legislature had specifically deleted language that would
have made employers liable under this statute for
harassment by clients or customers, it must have considered
and then rejected the language, and it is not for the court
to construe the statute to incorporate the omitted
language.
According to the author's office, the strongly worded
dissenting opinion in Salazar
illustrates the need for the Legislature fix a problem
that, in Presiding Justice Klein's view, does not exist:
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Senate Committee on Labor and Industrial Relations
"There is no good reason, after all these years, to revisit
the
statute in order to strip employees of protection from
client harassment. In accordance with the Legislature's
declared intent, this court should hold an employer liable
under section 12940 for harassment by an employer's
'clientele' if the employer had actual or constructive
knowledge of the harassment and failed to take 'all
reasonable steps' necessary to prevent harassment from
occurring."
4. Opponents , including the California Chamber of
Commerce, argue that this measure imposes unreasonable
liability on the business community. Among other
opposition arguments, many state that it would unfairly
change a basic principle underlying California's current
employee harassment law - that employers can only be liable
for harassment of their employees by persons within the
employer's control. Employers have a degree of legal
control over the behavior of employees in the work
environment, but have no comparable legal control over
non-employees, especially the actions of non-employees
outside of the employer's premises.
5. Vote History . This measure passed the Assembly by a
50 to 27 vote, and the Senate Committee on the Judiciary by
a 5 to 1 vote.
Support:
California Labor Federation, AFL-CIO (Co-Sponsor)
California NOW (Co-Sponsor)
American Federation of State, County and Municipal
Employees, AFL-CIO
Anti-Defamation League
Attorney General Bill Lockyer
California Commission on the Status of Women
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
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Senate Committee on Labor and Industrial Relations
California Employment Lawyers Association
California Faculty Association
California Independent Public Employees Legislative Council
California Labor Federation, AFL-CIO
California Organization of Police and Sheriffs
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
Congress of California Seniors
Consumer Attorneys of California
Department of Fair Employment and Housing
Equality California Lambda Letters
Lambda Letters Project
Privacy Rights Clearinghouse
Protection & Advocacy, Inc.
Services Employees International Union
Teamsters Public Affairs Council
Western States Council of Sheet Metal Workers
Opposition:
Ad Industries, Inc.
Associated Builders and Contractors of California
Automotive Aftermarket Services Inc.
California Apartment Association
California Assisted Living Association
California Association of Health Facilities
California Assn. of Sheet Metal and Air Conditioning
Contractors, National Association
California Bankers Association
California Chamber of Commerce
California Grocers Association
California Healthcare Association
California Manufacturers & Technology Association
Charles Leonard Western, Inc
Civil Justice Association of California
Motion Picture Association of America, Inc.
Murrieta Chamber of Commerce
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Senate Committee on Labor and Industrial Relations
National Federation of Independent Business
Orange County Fire Authority
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Hearing Date: July 9, 2003 AB
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