AB 1443 by Assemblymember Nancy Skinner (D-Berkeley) – This new bill amends the Fair Employment and Housing Act to prohibit harassment against unpaid interns (in case they would not quality as "employees.").
The other new law requires a longer discussion. AB 2053 by Assemblymember Lorena Gonzalez (D-San Diego) expands California's anti-harassment training law, AB 1825. Employers must include as part of AB 1825 training information about "abusive conduct." So, the Fair Employment and Housing Act is where AB 1825 sits. And AB 1825 training originally was targeted at harassment that is illegal under FEHA, although it also must include training about discrimination and retaliation too.
Under the new law, though, employers must include information about conduct that is not covered by the Fair Employment and Housing Act. That is because that law covers conduct that is motivated by sex, race, and other protected categories. Here's the definition:
For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or
undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.
So, no requirement of race, sex, or national origin-based hatred or bias.
Most of the definition of abusive conduct prohibits treatment that is out of bounds, and which would be probative of a harassment claim if related to a protected status. Training cannot hurt. And as of now, as stated, "abusive conduct" is not prohibited by law.
But the definition includes "derogatory remarks," that a "reasonable person" would find "humiliating." For example, " Bob, you did a terrible job on that project. Derogatory? Sure. Humiliating?" Could be, right? Perhaps the law requires repeated conduct, because it says "a single act" is not abusive conduct. But even that proviso has a wiggle for single acts that are "especially severe and egregious." Employers and managers will have to rely on "malice" to differentiate between harsh criticism and "abusive conduct." Malice, though, is not defined in this statute, though it means "hatred or ill will" in other contexts.
We'll see how this shakes out. I'm sure that adding "abusive conduct" to FEHA is only one or two legislative sessions away. Illegal harassment is not protected by the First Amendment, says the California Supreme Court. Is there a first amendment issue here? We'll have to see that as well. Stay tuned.
This new law kicks in January 1, 2015. I'm off to modify our training programs now.
