Senator Leyva Introduces Legislation to Protect Victims of Harassment from Retaliation

SB 1038 Would Hold Individuals Personally Liable for Retaliatory Actions

Thursday, February 8, 2018

SACRAMENTO – Building on her ongoing efforts to protect victims of sexual harassment and other related forms of harassment, Senator Connie M. Leyva (D-Chino) today introduced important legislation to clarify that individuals can be held personally liable for retaliating against an employee for exercising her or his legal rights against discrimination and harassment under state law.

“It is simply wrong that someone could be held personally liable for harassing another person, but not for retaliating or trying to punish victims for asserting their legal rights under the law,” Senator Leyva said.  “SB 1038 stands on the side of victims by stating loud and clear that retaliatory attempts to silence or intimidate employees are not only completely inappropriate, but they are also grounds for personal liability.  As we have seen in the #MeToo and #WeSaidEnough movements, threats of retaliation are one of the biggest barriers for women and men who wish to file sexual harassment complaints.  SB 1038 tells harassers that they will be held accountable if they try to interfere with or threaten someone who has made a sexual harassment claim—as is their clear legal right to do.”

Specifically, SB 1038 clarifies that individuals may be held personally liable for taking retaliatory action against workers who assert their legal rights under the California Fair Employment and Housing Act (FEHA).  Already, under current law, individuals may be held personally liable for harassment claims under FEHA.  However, the California Supreme Court’s decision in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal. 4th 1158 rendered the issue of whether individuals may not be held personally liable for retaliation unclear.  By statutorily clarifying that individuals can also be held personally liable in cases of retaliation, SB 1038 will protect current and future potential victims of harassment.

Equal Rights Advocates, a national civil rights organization working to ensure increased access and opportunities for women and girls, notes in its role as co-sponsor that SB 1038 is a critical workplace protection for women in California.

“Fear of retaliation has a chilling effect on women’s ability to assert their legal right to a workplace free of sexual harassment.  SB 1038 is an important step to curbing retaliation that too often silences and pushes out women who speak up. This common sense reform is a necessary step toward eradicating sexual harassment in all workplaces,” stated Jessica Stender, Senior Counsel, Workplace Justice & Public Policy at Equal Rights Advocates.

As SB 1038 co-sponsor, the California Employment Lawyers Association strongly supports greater accountability for individuals that retaliate against employees for exercising their legal rights.

"As more women and men come forward in the #MeToo movement, we must ensure that their voices are heard and their jobs are protected.  We cannot allow harassers, and those that aid and abet them, to try to silence those they harass without any personal accountability.  This bill, by holding individuals personally liable for retaliatory acts, ensures that those in power do not interfere with individuals who are trying to assert their rights under the Fair Employment and Housing Act,” noted Mariko Yoshihara, Policy Director for the California Employment Lawyers Association.

As the Vice Chair of the California Legislative Women’s Caucus, Senator Leyva authored legislation signed into law to eliminate the statute of limitations on rape (SB 813) in 2016 and to criminalize sextortion (SB 500) in 2017, and is currently leading efforts to ban secret settlements in cases of sexual assault, sexual harassment, and sex discrimination in California (SB 820).

As SB 1038 was introduced today, the Senate Rules Committee will soon assign the bill to the appropriate Senate policy committee(s) for consideration.