Seyfarth Synopsis: The California Legislature has introduced a new bipartisan bill, AB 1870, that would give all employees—not just those claiming sexual harassment—three years to file DFEH complaints of unlawful discrimination, instead of the one year provided by current law.
More time to report discrimination
With the #MeToo movement sweeping the nation, California legislators are introducing bills aimed at giving sexual harassment-claimants more legal protection.
One measure, AB 1870, would give workers two more years to file complaints with the DFEH.
Currently, California workers subjected to harassment or discrimination have one year to file a claim with the DFEH, the state agency that enforces the FEHA. Filing a DFEH claim is a prerequisite to filing a lawsuit under the FEHA. If employees fail to file a timely DFEH complaint, then (unless some exception applies), their lawsuit can be dismissed as time-barred.
On January 18, 2018, however, a bipartisan group—Assemblywomen Eloise Reyes, Laura Friedman, and Marie Waldron—introduced Bill 1870: the SHARE Act (Stopping Harassment and Reporting Extension). The SHARE Act would triple the time complainants have to file DFEH harassment or discrimination claims. The deadline would now be three years, instead of one, from the date on which the last discriminatory act occurred. Reyes stated that "AB 1870 will allow victims the time they need to seek justice and protect due process so that every Californian has equal access to recourse." Waldron added, "[e]xtending the time victims can report ensures they are supported and empowered to speak out when they feel comfortable—violators should not be able to avoid accountability simply because a claim is not filed within 12 months."
What does this mean for employers? Although AB 1870 aims to protect victims of sexual harassment, the bill would have a far more expansive effect: it would give workers three years to file all types of harassment and discrimination claims—not just sexual harassment claims. The bill would not, however, enlarge the remedies available to workers alleging discrimination. Nor would the bill allow for recovery of additional damages. The chief impact on employers would be an even heavier burden to record and retain the documents needed to mitigate the loss of memory that occurs over long periods of time.
#WeSaidEnough—Other Bills for Employers to Watch
Assemblywoman Reyes introduced not only AB 1870, but also AB 1867, which would require employers with 50 or more employees to maintain records of sexual harassment complaints for 10 years from the date of filing.
SB 1300, a bill introduced by Hannah-Beth Jackson, would bolster training requirements regarding workplace harassment. SB 1300 would also allow plaintiffs to claim that a defendant failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring, even without proving actual sexual harassment or discrimination.
Additionally, SB 1300 would require any employer, regardless of how many employees it has, to provide sexual harassment training to all employees in California within six months of their hire and once every two years. The FEHA currently requires only that employers with 50 or more employees provide supervisory employees with this training. Moreover, SB 1300 would require an employer to provide "bystander intervention" training, reflecting the idea that both men and women can interrupt behaviors to prevent harassment. Finally, SB 1300 would require an employer to tell employees how to report harassment and how to contact the DFEH to make a complaint.
California employers must be committed now more than ever to stopping all forms of harassment in the workplace. Make sure you review your employee handbooks for detailed workplace policies regarding harassment and all forms of discrimination. California employers should also be sure to implement comprehensive procedures for reporting harassment and prepare policies outlining those complaint procedures.
Please contact your favorite Seyfarth attorney to ensure that you have robust policies in place regarding discrimination and harassment in the workplace and procedures to effectively respond to complaints of discrimination.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.