BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 76|
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THIRD READING
Bill No: AB 76
Author: Corbett (D), et al
Amended: 8/28/03 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-1, 6/24/03
AYES: Escutia, Cedillo, Ducheny, Kuehl, Sher
NOES: Ackerman
NO VOTE RECORDED: Morrow
SENATE LABOR & INDUST. RELATIONS COMMITTEE : 5-3, 7/9/03
AYES: Alarcon, Dunn, Figueroa, Kuehl, Romero
NOES: Oller, Margett, McClintock
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 50-27, 4/24/03 - See last page for vote
SUBJECT : Employment discrimination: sexual harassment
SOURCE : California Labor Federation, AFL-CIO
California NOW
DIGEST : This bill amends the Fair Employment and Housing
Act (FEHA) to prohibit sexual harassment of an employee in
the workplace by a person other than an employee, agent, or
supervisor of the employer. This bill is intended to
invalidate the appellate court's rulings in Salazar v.
Diversified Paratransit, Inc. , which held that FEHA does
not impose employer liability for harassment of an employee
in the workplace by a client, customer or other third
CONTINUED
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party.
Senate Floor Amendment of 8/28/03 conforms the statute
squarely with the guidelines issued by the federal Equal
Employment Opportunity Commission. The amendment limits
the application of this bill to instances of sexual
harassment, rather than to all harassment.
ANALYSIS : Existing law, FEHA, makes it an unlawful
employment practice 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.
Existing law 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.
Existing law requires employers to seek to prevent all
harassment in the workplace by taking "all reasonable steps
to prevent harassment from occurring."
Existing case law recognizes various forms of harassment in
the workplace, including sexual harassment, same-sex
harassment, and racial harassment among others. Existing
case law also requires employers to take "a very dim view
of all forms of harassment, whether by supervisors or
others." [ Carrisales v. Department of Corrections ]
Existing law states, in the uncodified preamble to SB 2012
(Watson), Chapter 1754, Statutes of 1984, which enacted the
anti-harassment provisions in FEHA in 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 their non-supervisors and
clientele."
This bill adds, sexual harassment of an employee by a
nonemployee as a violation of FEHA.
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This bill specifies that in reviewing cases of sexual
harassment involving acts of nonemployees, the extent of
the employer's control and any other legal responsibility
which the employer may have with respect to the conduct of
those nonemployees shall be considered.
This bill specifies the Legislature's intent in enacting
the bill to construe and clarify the meaning and effect of
existing law and to reject the interpretation given to the
law in Salazar v. Diversified Paratransit, Inc.
Background
FEHA was amended in 1984 to prohibit harassment in the
workplace (SB 2012). The anti-harassment provision makes
an employer liable for harassment of an employee or other
covered individual by an employee other than an agent or
supervisor if the employer knew or should have known of the
conduct and failed to take immediate and appropriate
corrective action. Another provision requires employers to
"take all reasonable steps to prevent harassment from
occurring."
For almost two decades, this statute has been implemented
in the state by the State Department of Fair Employment and
Housing through regulations and directives, providing
guidelines to employers, both private and public, on how to
prevent harassment, how to deal with reports of harassment,
and what corrective action may be taken when harassment
occurs. Courts have interpreted and applied the statute to
provide relief in numerous cases. [See, for example, Murray
v. Oceanside Unified School District , dealing with sexual
harassment, Winarto v. Toshiba American Electronics
Components , Inc. , awarding punitive damages for harassment,
and Murillo v. Rite Stuff Foods, Inc. , dealing with
compensatory and punitive damages in sexual harassment
cases.]
In 2002, the Second District Court of Appeal, in a sharply
divided opinion, held that FEHA does not protect an
employee from harassment by a client or customer of the
employer. [ Salazar v. Diversified Paratransit, Inc. ] The
Supreme Court has just granted review of the case. On June
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4, 2003, the Fourth District Court of Appeal, in Carter v.
California Department of Veterans Affairs , issued the same
holding.
This bill is intended to clarify what the appellate courts
have found to be a murky history of the legislative intent
behind SB 2012, invalidate those decisions, and address the
issue of harassment in the workplace by persons other than
employees, agents, and supervisors.
Raquel Salazar was employed as a bus driver by employer
Diversified Paratransit, Inc. to transport developmentally
disabled adults and children from their homes and care
providers to day care centers and schools. The person
accused of harassing Salazar was a passenger on her bus
route. The passenger repeatedly subjected Salazar to
various acts, such as touching her hair and other parts of
her body, exposing himself to her, grabbing her arms, until
one day he sexually attacked her. Salazar quit her job
after writing two incident reports and the last attack.
Despite the seriousness of the sexual harassment acts
committed against Ms. Salazar, the trial court granted the
employer a nonsuit and the appellate court sustained the
judgment. The majority opinion traced the legislative
history of SB 2012, the bill that enacted the
anti-harassment statute, and concluded that Section
12940(j)(1) does not create employer liability for
harassment of an employee by a client or customer. Since
the Legislature, the opinion said, 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.
The court also argued that since the Legislature derived
the language of Section 12940 from the federal Equal
Employment Opportunity Commission regulation implementing
Title VII in effect at that time, but did not incorporate
the parts of the EEOC regulation that protect employees
from sexual harassment by nonemployees in the workplace,
this protection was intentionally omitted.
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Dismissing the language in the preamble contained in SB
2012 that agencies and employers are required to establish
affirmative programs so that "worksites will be maintained
free from prohibited harassment and discrimination by their
agents, administrators, and supervisors as well as by their
nonsupervisors and clientele" as inconsistent with the
codified parts of the statute, the court decided that even
if the statute were to be liberally construed as required,
the Legislature would have used clearer language than that
found in Section 12940, had it intended the broader
liability under FEHA.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/28/03)
California Labor Federation, AFL-CIO (co-source)
California NOW (co-source)
Attorney General Bill Lockyer
American Federation of State, County and Municipal
Employees, AFL-CIO
Anti-Defamation League
California Conference Board of the Amalgamated Transit
Union
California Conference of Machinists
California Commission on the Status of Women
California Employment Lawyers Association
California Faculty Association
California Independent Public Employees Legislative Council
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
Consumer Attorneys of California
Equality California
Lambda Letters
Protection & Advocacy, Inc.
Services Employees International Union
State Commission on the Status of Women
Teamsters
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Western States Council of Sheet Metal Workers
OPPOSITION : (Verified 8/28/03)
Ad Industries, Inc.
American Electronics Association
Associated Builders and Contractors of California
Automotive Aftermarket Services Inc.
California Apartment Association
California Assisted Living Association
California Association of Health Facilities
California Association of Licensed Security Agencies,
Guards and Associates (CALSAGA)
California Association of Sheet Metal and Air Conditioning
Contractors, National Association
California Bankers Association
California Business Properties Association
California Chamber of Commerce
California Farm Bureau Federation
California Grocers Association
California Healthcare Association
California Hotel and Lodging Association
California Independent Grocers Association
California Manufacturers & Technology Association
California League of Food Processors
California Rental Association
California Retailers Association
Charles Leonard Western, Inc
Civil Justice Association of California
Folsom Chamber of Commerce
Knight Line Consulting
Lambda Association of California and Nevada
Motion Picture Association of America, Inc.
Murrieta Chamber of Commerce
National Federation of Independent Business
Orange County Fire Authority
SBC
TOC Management Services
ARGUMENTS IN SUPPORT : The author's office states, "Every
once in a while, a court decision comes down in our sister
branch that truly shocks the conscience. This bill
addresses one such case, where female bus driver Raquel
Salazar was forced to endure serious and repeated
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harassment by a bus rider without her employer taking
reasonable steps to protect her. Amazingly, 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. This is not only an outrage for
Ms. Salazar, it is unacceptable for all California workers,
and we in the Legislature must set it straight."
ARGUMENTS IN OPPOSITION : Although opposition to AB 76
has been tempered by the incorporation of the EEOC
regulatory language into the bill, the Chamber of Commerce
continues to oppose the bill based on what they say is the
bill's imposition of "unreasonable liability on the
business community." SBC, another opponent, states that AB
76 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 nonemployees, especially the
actions of nonemployees outside of the employer's
premises?[this bill] will clearly lead to increased
litigation, thereby overburdening the courts and
employers."
ASSEMBLY FLOOR :
AYES: Berg, Bermudez, Calderon, Canciamilla, Chan, Chavez,
Chu, Cohn, Corbett, Correa, Daucher, Dutra, Dymally,
Firebaugh, Frommer, Goldberg, Hancock, Jerome Horton,
Jackson, Kehoe, Koretz, Laird, Leno, Levine, Lieber, Liu,
Longville, Lowenthal, Maldonado, Matthews, Montanez,
Mullin, Nakano, Nation, Negrete McLeod, Nunez, Oropeza,
Parra, Pavley, Reyes, Ridley-Thomas, Salinas, Simitian,
Spitzer, Steinberg, Vargas, Wiggins, Wolk, Yee, Wesson
NOES: Aghazarian, Bates, Benoit, Bogh, Campbell, Cogdill,
Cox, Dutton, Garcia, Harman, Shirley Horton, Houston,
Keene, La Malfa, La Suer, Leslie, Maze, McCarthy,
Mountjoy, Nakanishi, Pacheco, Plescia, Richman, Runner,
Samuelian, Strickland, Wyland
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RJG:mel 8/28/03 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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