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

©2022 Seyfarth Shaw LLP  www.seyfarth.com 2022 Cal-Peculiarities | 169 A Government Code provision prohibits employers from requiring an employee to release any FEHA claim or right, or to sign a non-disparagement agreement that denies the employee the right to disclose information about sexual harassment, in exchange for a raise or bonus or as a condition of employment or continued employment . 192 In 2022, the “Silence No More Act” expanded the scope of the Government Code section to make unenforceable, as a condition of employment (or in a separation agreement), non-disparagement agreements that deny the employee’s right to disclose information about any “unlawful acts in the workplace” unless the provision also includes specific carve-out language stating, in substantial effect: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful. ” 193 T his provision does not apply to any negotiated agreement to settle a FEHA claim filed in a legal proceeding or through the employer’s internal complaint process . 194 T he provision also expressly does not prohibit inclusion of a general release or waiver of all claims in a separation agreement (provided that the employee is notified of the right to consult with an attorney while being given at least five business days to do so) . 195 N or does the provision prohibit confidentiality as to the amount paid in settlement . 196 6.5.14 Expanding liability exposure for harassment The Legislature, in 2018, created a remarkable series of nudges to judges to favor harassment plaintiffs, adding a new FEHA sectio n 197 to declare that  the harassment laws aim to provide all Californians with equal opportunity to succeed in the workplace, and liability for harassment occurs when “the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to dispute the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being”;  plaintiffs need not show that “tangible productivity has declined as a result of the harassment,” so long as a reasonable person subjected to the discriminatory conduct would find that the harassment so altered working conditions as to “make it more difficult to do the job,” and the Legislature approves the concurring opinion of Justice Ginsburg in Harris v. Forklift Systems, 510 U.S. 17 (1993);  a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment if the conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment and the Ninth Circuit’s opinion in Brooks v. City of San Mateo , 229 F.3d 917 (9th Cir. 2000) must not be used to determine what conduct is sufficiently severe or pervasive under FEHA ; 198  hostile work environments depend on the totality of circumstances and so—consistent with Reid v. Google, Inc ., 50 Cal. 4th 512 (2010) (rejecting “stray remarks” doctrine)—discriminatory remarks may be relevant “even if not made directly in the context of an employment decision or uttered by a nondecisonmaker”;  liability for harassment should not vary by the type of workplace, notwithstanding any “language, reasoning, or holding to the contrary” in Kelley v. Conco Companies , 196 Cal. App. 4th 191 (2011), and courts should consider the nature of the workplace only when “engaging in or witnessing prurient conduct and commentary is integral to the performance of the job duties”; and  harassment cases “are rarely appropriate for disposition on summary judgment” and the Legislature approves the decision in Nazir v. United Airlines, Inc. , 178 Cal. App. 4th 243 (2009) (an anti-summary