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California Ups the Ante With Workplace Protections for Women

California Governor Jerry Brown signed into law a slew of new requirements geared toward expanding workplace protections for women.
The first law, which has received a great deal of attention, mandates that all boards of directors for companies headquartered in California must have at least one woman as a board member by 2021. Companies with boards of at least five people must have two women, and boards with at least six members must have three women. CBS News reported that as of October 1, 100 of California’s 400 based companies had no female members on their boards. Companies such as Apple and Facebook will need to add at least one woman to meet the requirements.
In addition, the following measures were also enacted, some of which go into effect January 1, 2019:

  • Non-disclosure clauses included in settlements of sexual harassment, sexual assault, sex discrimination, failure to prevent and retaliation claims may not preclude the disclosure of factual information related to claims filed in civil court or with an administrative agency. The claimant may also include a provision protecting his or her identity.
  • Settlement agreements may not waive plaintiff’s right to testify in front of a legislative or judicial body regarding alleged criminal conduct or the alleged sexual harassment.
  • Companies may not require employees to sign releases of liability for claims under the Fair Employment and Housing Act or non-disparagement agreements as a condition of continued employment or in exchange for a bonus. Negotiated settlements to resolve an underlying FEHA claim are not included.
  • Employers will face increased liability for discrimination and harassment conducted in the course of business by outside contractors and other non-employees.
  • Sexual assault victims have up to a decade to seek civil damages.
    Employers having as few as five employees must now provide at least two hours of sexual harassment prevention training to all supervisory employees and at least one hour to all non-supervisory employees by January 1, 2020, and then every other year subsequently. The requirement formerly applied to employers with at least 50 employees.
    • The California Fair Employment and Housing Department will have the training courses available on their website.
  • In sexual harassment cases:
    • A single incident of harassment conduct is sufficient to create a triable issue regarding the existence of a hostile work environment;
    • Hostile work environment determinations will depend on the totality of the circumstances even if a discriminatory remark was made by a non-decision maker or not in the context of an employment decision;
    • The standard of harassment is the same irrespective of the type of workplace;
      harassment cases are “rarely appropriate for summary judgment;”
    • Tangible productivity need not decline to show harassment, it is sufficient to show that the harassment so altered the working conditions to make it more difficult to do the job.