188 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 109 “Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” 9 U.S.C. § 402. 110 Guz v. Bechtel Nat’l, Inc., 24 Cal. 4th 317, 354 (2000); Reno v. Baird, 18 Cal. 4th 640, 647 (1998). 111 Gov’t Code § 12940(j)(4)(A). 112 Gov’t Code § 12940(j)(1). 113 Id. (unlawful to harass “an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract”). By a 2016 amendment, any individual employed under “a special license pursuant to Section 1191 or 1191.5 of the Labor Code in a nonprofit sheltered workshop, day program, or rehabilitation facility” may sue for harassment or discrimination under FEHA. Gov’t Code § 12926.05. 114 Gov’t Code § 12940(j)(3). 115 See Gov’t Code § 12940(j)(1); State Dep’t of Health Servs. v. Superior Ct., 31 Cal. 4th 1026, 1044 (2003) (employer with harassing supervisor cannot assert Ellerth/Faragher defense, but can escape liability for damages plaintiff could have avoided by reporting the harassment more promptly if (1) employer took reasonable steps to prevent and correct workplace harassment, (2) plaintiff unreasonably failed to use preventive and corrective measures employer provided, and (3) reasonable use of the employer’s procedures would have prevented at least some of the harm that the employee suffered). 116 See § 6.5.5; Gov’t Code § 12926(t). 117 Gov’t Code § 12940(i). 118 Miller v. Dep’t of Corrections, 36 Cal. 4th 446, 466 (2005). 119 Gov’t Code § 12940(j)(1), (k). See Turman v. Turning Point of Cal., Inc., 191 Cal. App. 4th 53, 59-60 (2010) (employer must take immediate, appropriate corrective action in response to harassment complaints, even when harassment is “inherently part of the job”). 120 Gov’t Code § 12950(b). For discussion of the California-imposed duty to prevent and correct harassment, see § 6.5.3. 121 2 Cal. Code Regs. § 11023(b), (c). 122 Gov’t Code § 12950.1. 123 2 Cal. Code Regs. §§ 11019(b), 11034(f)(1). 124 146 Cal. App. 4th 63 (2006), review granted, 57 Cal. Rptr. 3d 541 (Cal. April 18, 2007). 125 Id. at 75. 126 47 Cal. 4th 686, 706 (2009). 127 18 Cal. 4th 640, 646-47 (1998). 128 Gov’t Code § 12940(k). 129 Gov’t Code § 12940(j)(1), (3). 130 Flait v. N. Am. Watch Corp., 3 Cal. App. 4th 467, 476 (1992) (citing Gov’t Code § 12940(h)) (emphasis included in original). 131 Id. at 475. 132 Id. at 477. 133 Gov’t Code § 12950(b). The fact sheet (DFEH-185) is available at https://calcivilrights.ca.gov/Posters/?openTab=1 (visited Mar. 10, 2023). 134 Gov’t Code §§ 12950 and 12950.1. The DFEH must make available a one-hour and a two-hour on-line training course that employers can use and must make the training videos, existing informational posters, fact sheets, and on-line training courses available in multiple languages. Gov’t Code § 12950.1(j), (k). 135 Gov’t Code § 12950.1(a). 136 Gov’t Code § 12950.1(a)(1), (3). 137 Gov’t Code § 12950.1(a)(1), (2), (3). 138 Gov’t Code § 12950.1(f). 139 Id. 140 The DFEH accepts complaints from employees that their employers have not complied with the law requiring that sexual harassment prevention training be provided. Such complaints filed after January 1, 2020 will be reviewed in light of the totality of the circumstances, which may include the availability of the DFEH’s on-line training courses or the availability of qualified trainers. If the DFEH finds that the law has been violated, then it will work with employers to obtain compliance with the law. 141 2 Cal. Code Regs. § 110234, available at https://www.dfeh.ca.gov/shpt (last visited Mar. 29, 2024). 142 Id. § 11024(a)(1), (3). 143 Id. § 11024(a)(4)(A); cf. Clopton v. Global Computer Assocs., 4 AD Cases 360 (C.D. Cal. 1995) (five-employee FEHA jurisdictional threshold means employees within California). 144 2 Cal. Code Regs. § 11024(a)(4), (9). 145 Id. § 11024 (a)(12).
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