Cal-Peculiarities: How California Employment Law is Different 2022 Edition

162 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 6.5 Special Rules for Discriminatory Workplace Harassment Federal law on an employer’s duty to prevent and correct harassment consists principally of Title VII’s simple ban on sex discrimination, as interpreted by the Equal Employment Opportunity Commission Guidelines on Discrimination Because of Sex , 106 by various EEOC policy guidances, and by judicial decision s. 107 While the #MeToo movement has not yet affected federal employment law, it did influence the 2017 Tax Cuts and Jobs Act, which added Internal Revenue Code section 162(q), regarding payments related to sexual harassment and sexual abuse: “No deduction shall be allowed under this chapter for (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney fees related to such a settlement or payment. ” 108 While federal statutory language addressing harassment is relatively sparse, California statutory language on the subject is abundant. Generally, interpretations of the FEHA follow interpretations of Title VII, because the two statutes share the same basic purpose . 109 B ut California’s statutory and regulatory language specifies many employer obligations that transcend federal law. 6.5.1 Special aspects of California harassment law California law on workplace harassment exceeds the scope of federal law in many important respects. California harassment law, unlike federal law,  governs employers of one or more (not 15 or more) employees , 110  protects from harassment additional statuses (e.g., marital status and sexual orientation) , 111  protects from harassment not only employees and applicants but also many kinds of non-employees— such as independent contractors, unpaid interns, and volunteers , 112  imposes personal liability on individual perpetrators, including both supervisors and co-workers , 113  makes employers automatically liable for harassment by a supervisor, with no recourse to an affirmative defense, except for a defense that affects the amount of damages onl y, 114  defines “supervisor” more broadly than the definition followed under Title VII , 115  forbids “any person” to “aid, abet, incite, compel, or coerce” harassment , 116  makes employers liable for perpetrating or permitting sexual favoritism that is “sufficiently widespread” to convey the “message” that management views women as “sexual playthings” or that the way to get ahead is to sleep with the boss, regardless of whether the sexual conduct was unwelcome and regardless of whether the plaintiff herself ever received a sexual advanc e, 117  requires all employers “to take all reasonable steps to prevent harassment, ” 118  requires all employers to distribute to all employees a detailed fact sheet on sexual harassment , 119  requires all employers to write and distribute anti-harassment policies with prescribed content , 120 a nd  requires larger employers to train supervisors (and rank-and-file employees) on the prevention of sexual harassmen t. 121