AB 2770 would allow employers to ask whether a candidate was fired from previous jobs because of sexual harassment claims, though experts say it may only create more ambiguity in the law. Photo illustration by Harold Foster.

published on June 8, 2018 - 4:42 PM
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In this time of the #MeToo movement, the issue of sexual harassment in the workplace has prompted California lawmakers to introduce legislation addressing the problem.

One such bill, AB 2770, passed the Assembly last month with a 72-0 vote and is currently in the Senate. It would allow employers to ask an applicant’s previous employers whether the applicant was fired from a previous job because of a sexual harassment investigation.

Assemblymember Jacqui Irwin (D-Thousand Oaks) introduced the bill and said in a press release that it would help businesses avoid hiring repeat sexual offenders.

“Serial sexual harassers have been able to go from one job to another because employers have been afraid of alerting prospective employers about the individual’s past actions,” Irwin said. “As more victims of sexual harassment speak up, we need to do more to protect employees from repeat sexual harassers.”

The bill would also make it more difficult for accused harassers to file defamation lawsuits against their accusers.

Harassment in the workplace

The US Equal Employment Opportunity Commission (EEOC), a federal agency responsible for administering and enforcing civil rights laws in the workplace, including processing reported sexual harassment claims, conducted a study in 2016 regarding sexual harassment in the workplace.  

According to the study, “anywhere from 25-85 percent of women report having experienced sexual harassment in the workplace,” and even though the gap is wide, statistically speaking, 1 in 4 people are affected by workplace harassment.

The study also revealed that reports of men experiencing workplace sexual harassment have doubled from 1990 to 2009, jumping from 8 percent to 16 percent.

Another EEOC study from 2003 found that 75 percent of employees who spoke out against workplace mistreatment experienced some form of retaliation.

‘Privileged communications’

While the bill could be a step in the right direction in combating workplace mistreatment, the language of the bill has some ambiguity that might not leave employers comfortable with revealing information regarding sexual harassment about former employees.

Existing law authorizes employers to answer whether or not they would rehire an employee, but AB 2770 would put complaints of sexual harassment into “privileged communications.”

Privileged communication is a conversation that takes place within in the context of a protected relationship, such as an employer and employee, or an attorney and client, and the law often protects against forced disclosure of such conversations.

AB 2770 bill would include among those privileged communications complaints of sexual harassment by an employee “without malice” to an employer, and would authorize an employer to answer “without malice”, whether the employer would rehire an employee and if the decision to rehire or not is based on the determination that the former employee engaged in sexual harassment.

The phrase “without malice”, or ill intent, is what might leave employers weary of divulging any information regarding their employees.

Susan K. Hatmaker is an attorney with Hatmaker Law Group in Fresno. She said that the phrase “without malice” is ambiguous.

Policies versus law

Hatmaker also makes it clear that there is a distinction between what is legally defined as sexual harassment, and a company’s sexual harassment policies.

“To constitute sexual harassment, it has to create a hostile, offensive working environment or an environment that is so uncomfortable and unreasonable that it interferes with a person’s ability to do their work. Plus, it has to be severe and or pervasive, plus a reasonable person must be offended by it, plus they must personally be offended by it to constitute harassment.”

A mere offensive utterance, as defined by the courts, would not be sufficient to constitute sexual harassment.

Though the bill aims to protect employers that answer questions about an employee, many might choose not to answer because companies want to be risk averse and don’t want to engage in activities that might spark litigation, even if claims of sexual harassment are true.  

Hatmaker stresses the importance of employers conducting background checks on applicants, however, allegations of sexual crimes do not show up in background checks — only convictions.

While Hatmaker believes that the bill might influence employer’s to ask questions regarding an applicant’s history regarding sexual harassment, an employer will not be obligated to release that information, and she advises her clients not answer such questions, as a general rule.  

HR perspective

Sierra HR Partners is an employment agency in Fresno that specializes in recruiting, human resource compliance, and training and workshops.

Sierra HR Partners’ Executive Director Brenda G. Budke, says that she doesn’t see the new bill providing any extra protection for employers.

“The proposed law does not do away with the ambiguity,” Budke said. “In fact, in our opinion it enhances the likelihood of litigation by increasing the ambiguity.  The former employer is authorized to communicate with a prospective employer information about a complaint of sexual harassment. Notice that the provision includes the phrase “without malice.”  The phrase also includes the term “credible evidence and communications.” What evidence is credible? Is there a test or is it subject to the discretion of the employer? Obviously, this gives the employee another basis to sue.

Budke says that even with this bill, she would advise her clients to only reveal limited information.

Other Sexual Harassment Bills

There are other sexual harassment bills pending before the California Legislature:

SB 1343 Seeks to amend sexual harassment prevention training for employees.

AB 1867 would require employers with 50 or more employees to maintain records of complains of sexual harassment for 10 years after the filing date.

AB 2366 seeks to protect employees who were victims of sexual harassment, and their families, from retaliation if they request time off or take time off, and to provide assistance to victims who seek counseling because of the abuse.

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