Senate Bill 1300, authored by Senator Hannah-Beth Jackson, is pending before Governor Jerry Brown after having passed both houses of the Legislature. SB 1300 would impose liability upon an employer for the acts of non-employees regarding harassment. It would also prohibit an employer from requiring a release of claims from an employee and ban the use of non-disparagement agreements because any such agreement would be unenforceable under the bill.

SB 1300 should be vetoed because it will significantly increase litigation in the State of California. The codified legislative findings and declarations are particularly problematic as they would urge courts in this state to rarely approve summary judgment motions and to utilize a much lower standard for determining what is actionable harassment in this state. While the author claims to merely providing “direction” to the courts, there are plenty of court decisions that provide appropriate guidance on what constitutes “severe or pervasive” behavior that makes harassment actionable.

If SB 1300 were enacted into law, the new standard “guiding” judges would be that the behavior would only have to “make it more difficult to do the job,” a very low bar that would simply result in a significant increase in employment litigation in California, which would create a tremendous burden on employers and the state’s court system, neither of whom can afford such a costly burden.

Instead, this bill should be vetoed so that a judge would retain his or her discretion to deal with the specifics of a case and decide whether the severe or pervasive standard had been met, as well as to determine whether a case should be subject to a summary judgment motion. The “guidance” offered by SB 1300 is too restrictive and does not represent the majority view of courts.

Finally, SB 1300 proposes to limit the use of non-disparagement agreements and general releases. The practical effect of this provision would be to deter employers from conducting self-audits and provide severance agreements to departing employees, both of which drive up the costs of litigation and only benefit plaintiffs’ attorneys.