News & Events - Newsletters
Workplace Wave, February 2003
The following are exerpts from this month's newsletter.
Are Employers Responsible for Harassment by Clients, Contractors and Third Parties?
Before the end of October 2002, a routine response to this inquiry from employment attorneys would be a resounding, yes. This conclusion is based on various theories: 1. The California Fair Employment and Housing Act (FEHA) contains very broad requirements for employers to "take all necessary steps to end harassment." 2. The Equal Employment Opportunity Commission's (EEOC) regulations specifically extend an employer's responsibilities to the workplace in general, regardless of whether the harassment is caused by an employee or non-employee. 3. Hostile environment liability has placed the responsibility on employers to ensure that the work environment is free from harassment, without any carve-out exceptions for the acts of non-employees.
However, a surprising decision from the California Court of Appeal, at least temporarily, threw these accepted concepts into disarray. In Salazar v. Diversified Paratransit, Cal. App. 2nd Dist., October 28, 2002 (Nos. B142840, B144243), the plaintiff, a female bus driver for developmentally disabled adults and children experienced repeated difficulties with a regular male passenger, including two incidents of physical assault and exposure of his genitals. Other female drivers had reported similar incidents involving the passenger to management. Salazar also reported the incidents. After the second incident, she resigned. In her sexual harassment lawsuit against DPI, she argued that FEHA obligated her employer to take all reasonable steps to prevent harassment, including third parties such as passengers. The court disagreed, finding that a particular subsection of FEHA and its legislative history did not support this position. Instead, it held the employer's obligation to prevent harassment applied only to acts by agents and employees over whom it could exercise control.
The Salazar decision does not have precedential value as it has been accepted for review by the California Supreme Court. This appeal may be made moot by the California legislature, which has already introduced a bill to "fix" the glitch relied upon by the court in Salazar. AB 76, authored by Assemblymember Elaine Corbett will make it unlawful for an employer to fail to take immediate and appropriate corrective action to prevent harassment of an employee by any person, once the employer knows or should have known of this conduct. This will make it clear that employers are responsible for harassment by customers, clients, contractors, vendors and third parties in the workplace.
Proposed FMLA Changes – Again
Senate Bill 304, if enacted, will expand FMLA to cover more workers and encompass more reasons for taking leave. It will significantly lower the threshold for FMLA coverage to companies with at least 25 employees, rather than the current 50 employee minimum. This bill will also allow employees who are victims of domestic violence to take unpaid leave. Up to 24 hours per year could also be used as unpaid leave to attend school activities such as parent-teacher meetings. Finally, it establishes a grant program allowing states to provide six weeks of paid leave for births, adoptions, or because of a sick family member. The $400 million pilot program requires states to provide 50 percent in matching funds.