©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 169 In California it’s different. The California Supreme Court has refused to recognize the Ellerth/Faragher defense in a harassment case brought under FEHA.167 In place of the federal Ellerth/Faragher defense, California recognizes a limited avoidable-consequences defense, which permits employers to reduce damages (but not avoid liability) if the employer proves that (1) it took reasonable steps to prevent and correct harassment, (2) the plaintiff unreasonably failed to use measures the employer provided, and (3) the plaintiff’s reasonable use of those measures would have prevented some or all of the harm.168 Broad definition of “supervisor.” The U.S. Supreme Court has interpreted the analogous federal law (Title VII) to call for a narrow definition of “supervisor,” encompassing only those management-level employees who “are empowered” to take “tangible employment actions” against lower-level employees.169 The California statutory language, by contrast, defines “supervisor” broadly, to include any employee with the authority to discipline or direct other employees.170 6.5.6 Protection of independent contractors In America generally, employment discrimination laws protect employees and applicants (and, in the case of retaliation, former employees). Non-employees thus generally lack the protection of employment discrimination statutes. In California it’s different. In California an independent contractor, as much as an employee, is protected from discriminatory workplace harassment.171 6.5.7 Sexual assault statute California has created a separate statutory claim for sexual battery.172 There are also separate statutory claims for discriminatory acts of violence and intimidation.173 6.5.8 Stalking In addition to criminal stalking laws, California has created a separate civil statutory claim for stalking.174 6.5.9 Sexual harassment in business, service, and professional relationships California has created a special prohibition on sexual harassment in non-employment relationships.175 Specifically, Civil Code section 51.9 (the Unruh Act) imposes liability for sexual harassment in a non-employment context involving business, service, and professional relationships (e.g., physician, attorney, real estate agent, loan officer, financial planner, landlord, teacher). Originally, section 51.9 imposed liability when the plaintiff and the defendant had a business, service, or professional relationship and (1) the defendant made sexual advances, solicitations, sexual requests, demands for sexual compliance, or engaged in other verbal, visual, or physical conduct that was unwelcome and pervasive or severe and based on gender, (2) the plaintiff could not easily terminate the relationship, and (3) the plaintiff suffered resulting economic loss or disadvantage or personal injury. Legislation effective in 2019 has removed the requirement that the plaintiff could not “easily terminate the relationship” and has broadened the list of professional relationships to include “elected official”, “lobbyist,” “director,” and “producer.” The new law also makes the DFEH responsible for enforcing sexual harassment claims under section 51.9 and makes it unlawful to deny—or to aid, incite, or conspire in the denial of—a person’s rights related to sexual harassment claims.176
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