BILL ANALYSIS
AB 2889
Page 1
Date of Hearing: April 21, 2004
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Paul Koretz, Chair
AB 2889 (Laird) - As Introduced: February 20, 2004
SUBJECT : Unlawful employment practices.
SUMMARY : Makes employers responsible for the acts of
non-employees with respect to all forms of harassment in the
workplace where the employer or its agents or supervisors knew
or should have known of the conduct and failed to take immediate
and appropriate corrective action.
EXISTING LAW
1)Makes it an unlawful employment practice for an employer to
harass or discriminate against an employee because of the
employee's race, religious creed, color, national origin,
ancestry, physical or mental disability, medical condition,
marital status, sex, age, or sexual orientation.
2)Makes harassment of an employee by another employee, other
than an agent or supervisor, an unlawful employment practice
if the employer knew about the conduct and failed to take
immediate and appropriate corrective action.
3)Provides that employers are responsible for the acts of
non-employees with respect to sexual harassment in the
workplace if the employer knew or should have known of the
conduct and failed to take immediate and appropriate
corrective action.
4)Requires employers in California to seek to prevent all
harassment in the workplace by taking "all reasonable steps to
prevent harassment from occurring."
FISCAL EFFECT : Unknown
COMMENTS :
Last year, AB 76 (Corbett), Chapter 671, Statutes 2003, was
signed into law. AB 76 clarified that employers in California
are required, consistent with federal law, to take reasonable
steps to protect their employees from sexual harassment
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perpetrated by an employer's customers, clients or other
non-employees. When introduced the measure dealt with all forms
of harassment. However, by the end of the legislative process
compromises were made and the measure was explicitly limited to
sexual harassment.
The author's argument for this bill states "Because AB 76 was
limited to sexual harassment, it has created a "hierarchy" of
harassment protection favoring sexual harassment over harassment
directed at employees because of their race, religion, color,
national origin, ancestry, disability, medical condition, age,
or sexual orientation. This clean-up bill seeks to
appropriately "equalize" worker protections against harassment
so that regardless of the type of harassment being perpetrated
by a customer, client or other third party in the workplace, the
message will be clear: such harassment will not be tolerated,
and California employers must take reasonable steps to protect
their employees."
Supporters and the author argue that this bill will put
California into conformity with federal law and regulations
regarding third-party, or non-employee harassment of any kind.
The primary federal law prohibiting sexual harassment is Title
VII of the Civil Rights Act of 1964 which makes it unlawful for
an employer to discriminate against an employee on the basis of
race, color, religion, sex, or national origin. The United
States Supreme Court ruled, in Meritor Savings Bank V. Vinson
(1986 477 U.S. 57), that sexual harassment violates the
prohibition against sex discrimination in Title VII. The Civil
Rights Act is enforced by the Equal Employment and Opportunity
Commission (EEOC).
EEOC enforcement guidelines, however, make clear that Title VII
protections apply to all forms of harassment, not only sexual
harassment. Additionally, the guidelines note that "Title VII
law and agency principles will guide the determination of
whether an employer is liable for age [i.e., non-sexual]
harassment by its supervisors, employees, or non-employees".
Additionally, in Peries v. New York City Board of Education
(2001 U.S.Dist LEXIS 23393),
a federal district court cited the federal third party
harassment regulation in support of its conclusion that a
teacher's employer could be found liable for third-party
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harassment based not on sexual harassment, but on national
origin.
It should be noted that under state law, in Government Code
12940 (j)(1), only harassment against employees by non-employees
is limited to sexual harassment. All forms of harassment, under
that section, apply to harassment of an employee by an employer
or of an employee by another employee, other than an agent or
supervisor.
Arguments in Support
The author and supporters view the compromises to AB 76 as
having inadvertently created a "loop hole" with respect to state
law. Supporters of the bill, made up of the Attorney General as
well as many statewide labor and civil rights groups, argue
that, by closing the loop hole, this bill merely brings
California law in line with the broader protections provided
under federal law so that California workers are not afforded
less protection against third party harassment than they receive
under federal law.
The California National Organization for Women writing in
support argues that this bill only holds an employer liable for
its own actions, and then only if the employer knew or should
have known if illegal harassment and failed to take corrective
action.
Arguments in Opposition
The Civil Justice Association of California (CJAC) opposes this
bill because "it will subject employers to liability for all
forms of third party harassment." It also opposes the bill
because "Assembly Bill 76 ... expanded California law beyond
federal law that covers only employers with 15 or more
employees." CJAC further argues that employers lack control,
legal or otherwise, over the behavior of non-employees such as
clients, customers, or others outside of their supervisory
scope.
Similarly, the California Healthcare Association (CHA) argues in
opposition that the law must recognize the amount of control an
employer has over the conduct of non-employees currently
afforded under federal law. CHA further states that "Health
care employers occasionally have to respond to employee
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complaints of harassment committed by patients in their
facilities. Often times these patients suffer from diminished
mental capacity due to illness or medication and are unaware of
the impact their actions have on others."
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
American Federation of State, County and Municipal Employees
Anti-Defamation League
California Faculty Association
California Labor Federation, AFL-CIO
California National Organization for Women
California School Employees Association
California State Employees Association
National Center for Lesbian Rights
Opposition
California Bankers Association
National Federation of Independent Business
Associated Builders and Contractors of California
California Healthcare Association
Civil Justice Association of California
Analysis Prepared by : Nick Louizos / L. & E. / (916) 319-2091