Employment Discrimination Protections Expanded to Include Victims of Stalking
Effective January 1, 2014, Senate Bill 400 (“SB 400”) amended California Labor Code Sections 230 and 230.1 to extend the protections afforded to victims of domestic violence and sexual assault against discharge, discrimination, and retaliation, to employees who are the victims of stalking. Before this amendment, Labor Code Section 230 prohibited employers from threatening to discharge, discharging, discriminating against, or retaliating against an employee who was the victim of domestic violence or sexual assault for taking time off from work to get court relief “to help ensure the health, safety or welfare of the [employee] or his or her child.” Similarly, in the case of employers with 25 or more employees, Labor Code Section 230.1 prohibited the employer from threatening to discharge, discharging, discriminating against, or retaliating against employees who are victims of sexual assault or domestic violence. These prohibitions now also extend to victims of stalking.
Labor Code Section 230, as amended, defines “stalking” as it is defined by either California Penal Code Section 646.9 or Civil Code Section 1708.7:
Any person who willfully, maliciously and repeatedly follows or
willfully and maliciously harasses another person and who makes a
credible threat with the intent to place that person in reasonable
fear for his or her safety, or the safety of his or her immediate family….
or any person “engaged in a pattern of conduct the intent of which was to follow, alarm, or harass the plaintiff.”
The prohibitions against discrimination, retaliation, harassment and discharge will apply where the employee has given notice to the employer of his or her status as a victim, or the employer has “actual knowledge of the status.” (Labor Code § 230(e).)
Reasonable Accommodations for Workplace Safety Now Required
Another significant aspect of the new law is that it now requires employers who become aware of an employee’s status as a victim of stalking, domestic violence or sexual assault, to engage in a “timely, good faith, and interactive process to determine the effective reasonable accommodations” when that employee requests a reasonable workplace safety accommodation.. (Labor Code § 230(f)(1), (3)-(4).) To trigger the interactive process, the employee must disclose her or her status as a victim of stalking, domestic violence or sexual assault. Subsequently, the employer must treat as confidential and not disclose any verbal or written statements orrecords provided to the employer as evidence of the employee’s victim status. These materialscannot be disclosed except as required by state or federal law, or as necessary to protect the employee’s safety in the workplace. Further, the employee must be notified prior to any authorized disclosure.
The reasonable accommodations that may be made are set forth in the statute, and may include safety measures such as transfer, reassignment, modified work schedule, changes in workstation and work telephone, “installed lock,” assistance in documenting the violation, new safety procedures, changes to job structure and workplace facility, or referral to a victim assistance organization. (Labor Code §230(f)(2).) As this list is not exhaustive, what accommodations are reasonable under each particular circumstance will necessarily differ. Moreover, the new law contains vague references to “safety measures” and changes to “job structure” which could be interpreted widely depending on the nature of the workplace, and the severity of the incident. The law provides that, “[i]n determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.” (Labor Code § 230(f)(5).) Further, the law retains the “undue hardship” defense under Government Code section 12926, and also states that undue hardship also includes “action that would violate an employer’s duty to furnish and maintain a place of employment that is safe and healthful for all employees as required by Section 6400 of the Labor Code.” (Labor Code § 230(f)(6).)
Labor Code Section 230, as amended, further provides that an employer shall not retaliate against an employee who is the victim of stalking, domestic violence or sexual assault because that person has requested an accommodation, regardless of whether or not that request was granted. (Labor Code § 230(f)(8).)
What does this change in the law mean for employers and their employees? The law creates an additional protected category for purposes of discrimination, harassment and retaliation: victims of stalking. Employers should be aware that they could face liability should they discharge, harass or retaliate against an employee who has disclosed his or her status as a victim of stalking, domestic violence or sexual assault. The new law permits an employee to file a complaint with the California Department of Labor Standards and Enforcement based on the claim that the employer has violated the new law. The employer’s anti-discrimination and anti-harassment policies should now reflect the expansion of employment protections to victims of stalking, in addition to victims of domestic violence and sexual assault. Employers should train their human resources personnel and managers regarding this additional protection and establish policies and procedures for employees who may be victims of stalking, domestic violence, or sexual assault to request reasonable accommodations in the workplace. This training should include proper maintenance of confidentiality as required by the statute, along with a procedure to provide proper notice to the employee for authorized disclosures. Until there is clarification through case law on what constitutes a reasonable accommodation in this context, employers should work with any employees through the interactive process to determine what safety measures are reasonable under the circumstances, while maintaining the confidentiality of the process within the confines of the law.