BILL ANALYSIS
AB 76
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 76 (Corbett)
As Amended August 28, 2003
Majority vote
-----------------------------------------------------------------
|ASSEMBLY: |50-27|(April 24, |SENATE: |22-15|September 2, |
| | |2003) | | |2003 |
-----------------------------------------------------------------
Original Committee Reference: JUD.
SUMMARY : Rejects a 2002 court of appeal decision which held
workers in California are not protected against workplace sexual
harassment perpetrated by customers, vendors, and other third
parties, and thus harmonizes state and federal law regarding
harassment by such persons. Specifically, this bill :
1)Clarifies language in the Fair Employment and Housing Act
(FEHA) to ensure that under state law employers may
potentially be liable for sexual 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 repudiates the reasoning of a court of appeal
decision last year in 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.
The Senate amendments are technical and clarifying and state
expressly that the extent of the employer's control and any
other legal responsibility which the employer may have with
respect to the conduct of non-employees is to be considered in
evaluating whether the employer may have any liability. The
Senate amendments further expressly limit the bill to the sexual
harassment issue presented by the Salazar case.
AS PASSED BY THE ASSEMBLY , this bill was substantially the same
as the version passed by the Senate.
AB 76
Page 2
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 harassment:
whether the state's principal anti-harassment law imposes a duty
on an employer to take reasonable steps to prevent its employees
from being sexually harassed in the workplace by clients,
customers, or other non-employees. In so doing, this bill
rejects the court's analysis 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 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
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
AB 76
Page 3
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 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.
E.g., Crist v. Focus Homes, Inc. (8th Cir. 1997) 122 F.3d 1107,
1112; Peries v. Bd. of Educ. , 2001 Lexis 23393 (E.D.N.Y 2001).
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. This bill speaks
solely to the sexual harassment issue presented by the Salazar
case and no longer addresses the question of harassment on other
prohibited bases. 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: 0003233