©2024 Seyfarth Shaw LLP www.seyfarth.com 2024 Cal-Peculiarities | 189 146 Id. § 11024 (a)(2)(B). 147 Id. § 11024 (a)(2)(F). See also id. § 11024 (c)(2). 148 SB 970, 2018 bill adding Gov’t Code § 12950.3. (The DFEH can seek an order requiring an employer to comply with these requirements.) 149 Gov’t Code § 12950.2 (“practical guidance on how to enable bystanders to recognize potentially problematic behavior and to motivate bystanders to take action when they observe problematic behaviors”). 150 See https://mandatedreporterca.com/training/general-training (last visited Mar. 29, 2024). 151 AB 1963, 2020 bill amending Penal Code § 11165.7 to expand the list of mandated reporters to include human resource employees of a business of five or more employees that employs minors, as well as adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace. 152 Gov’t Code § 12950.1(h)(2). 153 See Lab. Code §§ 1420-1434. 154 AB 547, 2019 bill amending Lab. Code §§ 1420, 1425, 1429, 1429.5, 1431, and 1432. 155 Lab. Code § 1700.50 et seq. Talent agencies must retain, for three years, records showing that those educational materials were provided. 156 AB 3175, 2020 bill amending Lab. Code § 1700.52, effective Sept. 25, 2020, to require that a parent or legal guardian accompany ageeligible minors during employer-provided sexual harassment training made available on-line by the DFEH, and to certify to the Labor Commissioner that the training has been completed. 157 SB 530, 2019 bill amending Gov’t Code § 12950.1(l) and adding Lab Code § 107.5 et seq. 158 AB 241, 2019 bill amending Bus. & Prof. Code §§ 2190.1, 3524.5 and adding § 2736.5(c) (requiring Board of Registered Nursing and the Physician Assistant Board to adopt regulations requiring implicit bias training by January 1, 2022). 159 Thompson v. City of Monrovia, 186 Cal. App. 4th 860, 880 (2010); Trujillo v. N. Cnty. Transit Dist., 63 Cal. App. 4th 280, 289 (1998). See also Dickson v. Burke Williams, Inc., 234 Cal. App. 4th 1307, 1309 (2015) (reversing judgment for massage therapist alleging sexual harassment at work; “there cannot be a valid claim for failure to take reasonable steps necessary to prevent sexual harassment if, as here, the jury finds that the sexual harassment that occurred was not sufficiently severe or pervasive as to result in liability”). 160 DFEH v. Lyddan Law Grp., LLP, FEHC Dec. No. 10-04-P (Oct. 19, 2010) (respondent had no written anti-harassment policy or employee handbook, conducted no harassment prevention training, and did not independently investigate employee’s complaints; FEHC imposed injunctive relief). See also 2 Cal. Code Regs. § 11023(a)(3) (“Department may independently seek non-monetary preventative remedies for a violation of Government Code section 12940(k) whether or not the Department prevails on an underlying claim of discrimination, harassment, or retaliation”). 161 See, e.g., Mendoza v. W. Med. Ctr. Santa Ana, 222 Cal. App. 4th 1334, 1344-45 (2014) (plaintiff’s expert witness noted “numerous shortcomings in the investigation” into the plaintiff’s complaint of harassment; “lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess” uncovered by the plaintiff’s complaint; “more thorough investigation might have disclosed additional character and credibility evidence for defendants to consider before making their decision”). See also Nazir v. United Airlines, Inc., 178 Cal. App. 4th 243, 277-80 (2009) (inadequate investigation can evidence pretext). 162 Kotla v. Regents of Univ. of Cal., 115 Cal. App. 4th 283, 294 n.6, 295 n.8 (2004). 163 See, e.g., Page v. Superior Ct. (3NET Sys. Inc.), 31 Cal. App. 4th 1206, 1212-13 (1995); Matthews v. Superior Ct. (Regents of the Univ. of Cal.), 34 Cal. App. 4th 598, 603-06 (1995). 164 Gov’t Code § 12940(j)(3). The California Legislature overruled Carrisales v. Dep’t of Corrections, 21 Cal. 4th 1132 (1999), in which the California Supreme Court had recognized that FEHA does not apply to actions between co-workers in the absence of a supervisorial relationship. 165 State Dep’t of Health Servs. v. Superior Ct., 31 Cal. 4th 1026, 1041 (2003). 166 Id. at 1038-39. 167 Id. 168 Id. at 1044. 169 Vance v. Ball State Univ., 570 U.S. 421, 430-31 (2013) (upholding Seventh Circuit decision that had affirmed summary judgment for the employer; the employer is vicariously liable for harassment perpetrated by its employee only when the employer empowered the harasser to take “tangible employment actions against the victim,” such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits). 170 Gov’t Code § 12926(t). California’s definition of “supervisor,” which has no Title VII counterpart, is “any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Id. This language mirrors the definition of “supervisor” appearing in the National Labor Relations Act. 29 U.S.C. § 152(11). The U.S. Supreme Court in Vance declined to follow the NLRA definition of “supervisor”: “[T]he NLRA may in some instances define ‘supervisor’ more broadly … . But those differences reflect the NLRA’s unique purpose, which is to preserve the balance of power between labor and management … . That purpose is inapposite in the context of Title VII, which focuses on eradicating discrimination. An employee may have a sufficient degree of authority over subordinates such that … the employee should not participate with lower level employees in the same collective-bargaining unit (because, for example, a higher level employee will pursue his own interests at the expense of lower level employees’ interests), but that authority is not necessarily sufficient to merit heightened liability for the purposes of Title VII.” 570 U.S.
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