BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
AB 2889 A
Assembly Member Laird B
As Amended May 10, 2004
Hearing Date: June 22, 2004 2
Government Code 8
GMO:cjt 8
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SUBJECT
Employment Discrimination: Harassment in the Workplace
DESCRIPTION
This bill would make an employer liable for harassment of
employees in the workplace by nonemployees, where the
employer knew or should have known of the conduct and
failed to take immediate and appropriate action. This
would be an expansion of existing law, which limits such
liability only for sexual harassment.
BACKGROUND
The Fair Employment and Housing Act (FEHA) was amended in
1984 to prohibit harassment in the workplace (SB 2012,
Watson, Chapter 1754, Statutes of 1984). 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 two decades, this statute has been implemented in the
state 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, how to deal with reports of harassment, and
(more)
AB 2889 (Laird)
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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 (2000) 79 Cal.App.4th
1338, dealing with sexual harassment, Winarto v. Toshiba
American Electronics Components , Inc. (2001) 274 F.3d 1276,
awarding punitive damages for harassment, and Murillo v.
Rite Stuff Foods, Inc. (1998) 65 Cal. App. 4th 833,
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. (2002)
103 Cal.App.4th 131.] The Supreme Court granted review of
the case, but while the matter was pending, the Legislature
enacted AB 76 (see below). Salazar was returned to the
appellate court, which then held that since AB 76 intended
to and did clarify Section 12940(j) of FEHA, employers may
be held liable for harassment of employees by nonemployees.
[ Salazar v. Diversified Paratransit, Inc. (2004) 117
Cal.App.4th 318.] The Supreme Court also transferred back
to the appellate court a similar sexual harassment in the
workplace case, Carter v. California Department of Veterans
Affairs (2003) Cal.App.4th 469.
Last year, AB 76 (Corbett, Chapter 671, Statutes of 2003)
was introduced to finally clarify what the appellate courts
had found, until then, to be a murky history of the
legislative intent behind SB 2012, to invalidate those
decisions, and address the issue of harassment in the
workplace by persons other than employees, agents, and
supervisors. When this Committee heard AB 76, it was to
have overturned Salazar entirely and would have made
employers liable for all forms of harassment by
nonemployees client, customer, or other third party. The
Committee passed AB 76 in that form, but the bill was later
narrowed to apply only to acts of sexual harassment by
nonemployees.
AB 2889 would apply the protections afforded by AB 76 to
employees from sexual harassment in the workplace by
clients, customers, or other third parties, to all forms of
harassment, as AB 76 originally intended.
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CHANGES TO EXISTING LAW
Existing law , the 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. [Government Code
Section 12940(j)(1). All further statutory references are
to this code.]
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. [Section 12940(j)(1).]
Existing law provides that sexual harassment of an employee
or other covered individual by a nonemployee is unlawful if
the employer knew or should have known of the conduct and
failed to take immediate and appropriate corrective action.
[Section 112940(j)(1).]
Existing law requires employers to seek to prevent all
harassment in the workplace by taking "all reasonable steps
to prevent harassment from occurring." [Section 12940(k).]
Existing case law recognizes various forms of harassment in
the workplace, including sexual harassment, same-sex
harassment, and racial harassment among others. [Citations
omitted.] 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 (1999) 21 Cal.4th 1132, 1139.]
Existing law states, in the uncodified preamble to SB 2012
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." [SB 2012, Watson, Chapter 1754, Statutes of
1984, Section 1.]
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This bill would provide that harassment of an employee or
other covered individual by a nonemployee is unlawful if
the employer knew or should have known of the conduct and
failed to take immediate and appropriate corrective action.
COMMENT
1. Need for the bill
The author states that because AB 76 was limited to only
sexual harassment by nonemployees in the workplace,
rather than all the forms of harassment that may occur,
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, marital status, or sexual orientation.
The author further contends that this clean-up bill
"would 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."
2. Employer liability as to all forms of harassment
Until AB 76 was amended on the Senate Floor last year,
it addressed employer liability for all harassment in
the workplace by nonemployees. This bill would take the
current Section 12974(j)(1) back to its intended scope,
that is, to protect employees from all harassment, not
just from sexual harassment.
Supporters of this bill (and AB 76 last year) argue
that: (1) the express language of FEHA requires a
broad application of the statutory language; (2)
Section 12940(j)(1) states an inclusive responsibility
for an employer to "take all reasonable steps to
prevent harassment from occurring"; (3) Section
12940(i) prohibits any person?from inciting or
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compelling acts of harassment, implying thus that an
employer should be vigilant to a wide range of
potential harassing behavior; and (4) employers
exercise a purposeful degree of control over potential
customers through targeted advertising, routinely
require their employees to follow procedures in their
dealing with customers and clients, and therefore
should be equally vigilant regarding any harassing
behavior on the part of customers.
This bill would also set the record straight with
regards to the original intent of the Legislature when
it enacted the anti-harassment in the workplace
statute (SB 2012). Although uncodified, the preamble
to SB 2012 declares the legislative intent that
"employers be required to establish affirmative
programs so that worksites will be maintained free
from prohibited harassment and discrimination by
[employers'] agents, administrators, and supervisors
as well as their non-supervisors and clientele." [SB
2012, Watson, Chapter 1754, Statutes of 1984, Section
1.] It is well established that uncodified provisions
of a statute may be relied upon as reliable indicators
of legislative intent. [See, e. g., Barker v. Brown &
Williamson Tobacco Corp. (2001) 88 Cal.App.4th 42,
49.]
AB 2889 would make FEHA consistent with that original
legislative intent.
3. Current language of Section 12940(j)(1) adopts EEOC
regulation language, AB 2889 applies it to all
harassment
The language that is now in Section 12940(j)(1) was
lifted from the regulation promulgated by the U.S. Equal
Employment Opportunity Commission (EEOC) dealing with
employer liability for harassment in the workplace by
nonemployees.
In the chaptered form, AB 76 conformed FEHA to the EEOC
regulation, which limits employer liability to sexual
harassment by nonemployees in the workplace. This bill
would impelment the broader application of that
regulation to all forms of harassment in the workplace
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by nonemployees.
a. AB 2889 would make employer liable for all
harassment, not just sexual harassment, committed by
nonemployees
This bill would provide an employee the same
protection from harassment, i.e., all forms of
harassment, in the workplace, whether committed by
another employee or by a nonemployee.
Supporters point to the long-standing policy of the
state, unchallenged in its application by the courts,
that all forms of serious harassment is prohibited in
the workplace, if the employer knows or should have
known of the conduct and fails to take appropriate
corrective action. Thus, they say, there is no
reason to limit the liability for harassment by
nonemployees to sexual harassment.
b. As in current law, AB 2889 would require trier of
fact to consider degree of employer control over
nonemployees' behavior
When AB 76 imported the pertinent EEOC regulation
into Section 12940(j)(1), it also incorporated the
language requiring the EEOC to consider the extent of
the employer's control and any other legal
responsibility which the employer may have with
respect to the conduct of the nonemployees.
This bill would not change this requirement for the
trier of fact in an action alleging harassment by
nonemployees. The language acknowledges that an
employer's liability depends to a large extent on the
degree of control an employer has over any given
situation of harassment in the workplace.
c. Federal law interpreting EEOC regulation and
statutes favor protection from all harassment
Although the language of the EEOC regulation that was
imported into Section 12940(j)(1) refers to sexual
harassment by a nonemployee which could make an
employer liable to an employee, federal cases that
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have interpreted both the statute and the regulations
seem to favor the application of the protections to
situations where the harassment is not purely sexual
harassment. For example, in Aja M. Crist et al. v.
Focus Homes, Inc. (8th Cir. 1997) 122 F.3d 1107, the
court held that the employer residential care
facility for the developmentally disabled could be
found liable for failure to respond appropriately to
the conduct of a mentally incapacitated resident
toward program employees.
The Department of Fair Employment and Housing has
long regarded harassment of all forms as being
covered by FEHA and its implementing regulations. In
written testimony presented on AB 76, the Department
urged the Committee and the Legislature, in fact, to
adopt the broader coverage of the then version of AB
76, providing protection from all forms of
harassment, not just from sexual harassment. The
present department's position is not known.
This bill would make FEHA consistent with federal law
and regulation. Without AB 2889, California would
provide less protection to workers than federal law
does in this area. This would create an anomalous
situation because all other worker protection laws
under FEHA are more expansive than federal law in
scope and application.
4. Opponents' views on AB 2889
Opponent Chamber of Commerce, typical of opponents of AB
2889, claims that while AB 2889 was introduced with the
best of intention, the proposal ends up placing an
unreasonable liability on the California business
community, particularly California small business. This
opponent argues that workers are the only individuals
over which the employer may legally exercise control,
and AB 2889 would "unreasonably hold California
employers legally liable regardless of what actions they
might take to prevent harassment by an individual over
which the employer has little or no legal control? AB
2889 provisions make California employers solely
financially liable for the acts of persons who are not
their employees."
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In fact, this argument flies in the face of the language
in the current statute, and in AB 2889 if it is enacted.
The pertinent sentences in Section 12940(j)(1)
currently read:
?An employer may also be responsible
for the acts of nonemployees, with respect to
sexual harassment of employees, applicants, or
persons providing services pursuant to a
contract in the workplace, where the employer,
or its agents or supervisors, knows or should
have known of the conduct and fails to take
immediate and appropriate corrective action. In
reviewing cases involving the 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. ?(emphasis added)
AB 2889 would simply strike out "sexual" and
qualify "persons" to mean other persons.
As stated before, this language was lifted verbatim from
the federal regulations that have been interpreted by
federal case law to apply to harassment cases other than
sexual harassment. Further, a lawsuit brought by an
employee could in fact include an action against not
just the employer under FEHA but also against the
perpetrator of the harassment.
Support: Office of the Attorney General; American Civil
Liberties Union;
American Federation of State, County, and Municipal
Employees, AFL-
CIO; Anti-Defamation League; California Council of
the Blind;
California Commission on the Status of Women;
California
Employment Lawyers Association; California Faculty
Association;
California Independent Public Employees Legislative
Council;
California Labor Federation; California National
Organization for
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Women; California Professional Firefighters;
California Schools
Employees Association; California State Conference
of the National
Association for the Advancement of Colored People;
California State
Employees Association; Congress of California
Seniors; Consumer
Attorneys of California; Equality California;
Lambda Letters Project;
Legal Aid Society; Mexican American Legal Defense
and Educational
Fund; National Center for Lesbian Rights;
Protection and Advocacy,
Inc.
Opposition: Arcadia Chamber of Commerce; Associated General
Contractors of
California; Associated General Contractors of
California, San Diego Chapter; Association of
California Insurance Companies; California
Apartment Association; California Association of
Health Facilities; California Association of
Realtors; California Bankers Association;
California Chamber of Commerce; California
Healthcare Association; California Manufactures &
Technology Association; Civil Justice Association
of California; Consulting Engineers and Land
Surveyors of California; Motion Picture
Association of America, Inc.; National Federation
of Independent Business; Western Propane Gas
Association; 7-Eleven Inc.
HISTORY
Source: Author
Related Pending Legislation: AB 1229 (Simitian) would amend
the same section of FEHA. It is now
on the Appropriations Committee
suspense file.
Prior Legislation: AB 76 (Corbett, Chapter 671, Statutes of
2003) See Background.
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Prior Vote: Asm. Jud. (Ayes 7, Noes 3)
Asm. L & I. R. (Ayes 6, Noes 2)
Asm. Appr. (Ayes 16, Noes 5)
Asm. Flr. (Ayes 41, Noes 34)
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