168 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 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 Any person who commits sexual battery upon another can be find liable for “damages, including, but not limited to, general damages, special damages, and punitive damages.”173 There are also separate statutory claims for discriminatory acts of violence and intimidation.174 6.5.8 Stalking In addition to criminal stalking laws, California has created a separate civil statutory claim for stalking.175 6.5.9 Sexual harassment in business, service, and professional relationships (nonemployment context) California has created a special prohibition on sexual harassment in non-employment relationships.176 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.177 Of note, courts have observed that the “history of the amendments to Civil Code section 51.9 leaves no doubt of the Legislature’s intent to conform the requirements governing liability for sexual harassment in professional relationships outside of the workplace to those of … California’s FEHA … liability for sexual harassment in the workplace ….” 178 6.5.10 Special privacy protections for plaintiffs California courts have prevented defendants in harassment litigation from inquiring into a plaintiff’s victimization by prior sexual assaults,179 marital difficulties,180 and sexual conduct with persons other than those for whose behavior the plaintiff seeks to hold the defendant liable.181 6.5.11 Sexual favoritism Unlike federal law, California law dictates that sexual "favoritism” can be a basis for claims of sexual harassment.
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