SB 1300 Expands FEHA Litigation-Part II

Laura Curtis and Chris MIcheli
Laura Curtis is an attorney and Policy Advocate at the California Chamber of Commerce. Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc.

Part II – Intent Language

In addition to the statutory changes described above, SB 1300 sets forth several statements of “legislative intent” about the application of FEHA in regard to harassment claims. The measure does so in Section One of the bill by adding Section 12923 to the Government Code that sets forth five statements “with regard to application of the laws about harassment contained in this part.”

The first declaration concerns the Legislature’s views of harassment and specifically that “the Legislature affirms its approval of the standard set forth by Justice Ruth Bader Ginsburg in her concurrence in Harris v. Forklift Systems (1993) 510 U.S. 17 that, in a workplace harassment suit, ’the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment. It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job’. (Id. at 26).”

The second declaration concerns the Legislature’s view about a single harassment incident and specifically that “the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.”

The third declaration concerns the Legislature’s view of remarks made at work and specifically that ”the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine’.”

The fourth declaration concerns the Legislature’s view of the legal standard for sexual harassment and specifically that the “Legislature hereby declares its disapproval of any language, reasoning, or holding to the contrary in the decision Kelley v. Conco Companies (2011) 196 Cal.App.4th 191.”

The fifth declaration concerns the Legislature’s view of the use of summary judgment and that “harassment cases are rarely appropriate for disposition on summary judgment” and that “the Legislature affirms the decision in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 and its observation that hostile working environment cases involve issues “not determinable on paper’.”

Employers and lawyers should recall the general rule of statutory construction is to effectuate the intent of the Legislature which basically requires the courts to give the statutory language its usual and ordinary meaning. California State Restaurant Assoc. v. Witlow (1976) 58 Cal.3d 340. In this instance, however, SB 1300 did not make any statutory changes related to the five statements of “intent.”

There is a presumption that a statutory amendment was intended to change the meaning of the statute only when there is a material change contained in the language of the amended act. Dalton v. Baldwin (1944) 64 Cal.App.2nd 259. In other words, a statute is changed by a material amendment to the statutory language itself, but not by “legislative intent” language.

Similar results are found in other cases. For example, the amendment of a statute is evidence of an intention to change the rule stated by the court in applying its provisions. Butcher v. Brouwer (1942) 21 Cal.2d 354. And the fact that a lawmaking body knew decisions of appellate courts and made a substantial change in phraseology of a subdivision of the statute indicated an intention to effect a change of its meaning. Thomas v. Driscoll (1940) 42 Cal.App.2d 23. However, in both instances, there were changes made to the statutory language that was the subject of the legislative intent statements. Again, this was not the case with SB 1300.

In reviewing SB 1300, Section 1, subdivision (e), states, “Harassment cases are rarely appropriate for disposition on summary judgment.” However, SB 1300 does not amend Code of Civil Procedure Section 437(c), which sets forth the requirements regarding motions for summary judgment. Summary judgment is already an extremely high legal threshold whereby the “party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact, and that he is entitled to judgment as a matter of law[.]” Aguilar v. Atl. Richfield Co., 25 Cal. 4th 826 (2001).

“While courts should grant motions for summary judgment by defendants sparingly, ‘sparingly’ does not mean ‘seldom if ever,’ and although such motions should be denied when they should, they must be granted when they must.” Id. at 852 (emphasis added). The intent language in SB 1300 seeks to restrain the discretion of the courts in their evaluation of the facts before them which is inappropriate because whether or not a case should be summarily adjudicated needs to be left to a judge to decide who knows the specific facts of the case without legislative influence.

Similarly, through the intent language of SB 1300, the bill seeks to lower the legal standard for hostile work environment claims by referring to a single quote by a single justice’s concurring opinion in the U.S. Supreme Court’s 9-0 decision in Harris v. Forklift Systems (1993) 510 U.S. 17. However, the author removed from her bill all of the statutory amendments that would have actually changed the legal standard for actionable harassment cases.

As SB 1300 did not change the statutory standards for summary judgment and hostile work environment, the superfluous intent language contained in SB 1300 does not serve to provide guidance regarding either of these standards. See Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1046–1047. As the U.S. Supreme Court has stated, “We are governed by laws, not by the intentions of legislators.” Conroy v. Aniskoff (1993) 507 U.S. 511, 519.

Even the Legislature recognized the limitation of this intent language when it considered the bill. For example, the Assembly Judiciary Committee’s analysis that was prepared when SB 1300 was considered by that committee notes: “It is not at all clear what impact the guidance offered in these non-binding findings and declarations will have on how the courts decide cases…”

As a result, including broad “intent” language appears inconsistent with canons of statutory construction and prior court precedent. As such, the intent language of SB 1300 will surely increase employer costs as lawyers attempt to erroneously utilize the “findings and declarations” in SB 1300 to expand FEHA litigation in this state.

Laura Curtis is an attorney and Policy Advocate at the California Chamber of Commerce. Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc.

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