BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 519 A
Assembly Member Aroner B
As Amended June 10, 1999
Hearing Date: July 7, 1999 5
Civil Code 1
DLM:jt 9
SUBJECT
Sexual Harassment in Professional and Business Settings
DESCRIPTION
This bill would revise the Civil Code prohibitions against
sexual harassment in professional and business settings to
generally conform to the legal standards for filing sexual
harassment claims in the employment setting. Specifically,
the bill would provide that:
sexual harassment conducted by agents acting on behalf of
a business, service, or person with some other
professional relationship to the plaintiff is actionable;
verbal, visual, and physical conduct of a sexual nature,
or hostile nature based upon gender, are covered forms of
sexual harassment;
the scope of actionable conduct must be "pervasive"
rather than "persistent";
a victim of sexual harassment need not verbally ask the
harasser to stop the offensive conduct in order to be
entitled to seek legal redress;
emotional distress and violations of a plaintiff's
statutory or constitutional rights are injuries and/or
harm within the meaning of the law.
(more)
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In addition, the bill would repeal the requirement that
complaints and answers in these cases must be verified.
(However, the verification requirement for filing
administrative complaints with the Department of Fair
Employment and Housing would not be affected.)
BACKGROUND
In California, prior to the passage of Civil Code Section
51.9 in 1994, statutory claims of sexual harassment were
limited to employment and housing actions under the Fair
Employment and Housing Act (FEHA) (Government Code Section
12900, et seq.). In DFEH v. Univ. of Cal., Berkeley
(Forga) (1993) FEHC Dec. No. 93-08 [1993 WL 726830], the
Fair Employment and Housing Commission used the Unruh Civil
Rights Act (which prohibits discrimination in business
services and accommodations) to decide a sexual harassment
case involving a professor-student relationship in an
educational institution.
In 1994, the Legislature passed SB 612 (Hayden) Ch. 710,
Stats. of 1994. That bill added Civil Code Section 51.9,
which provides an express sexual harassment scheme for
non-employment situations. Section 51.9 covers sexual
harassment in business, service, and professional
relationships, including those of landlord-tenant,
physician-patient, lawyer-client, and teacher-student.
During the legislative process, SB 612 took some political
twists and turns. The final product established standards
for sexual harassment in the Civil Code which do not
comport with other California and federal sexual harassment
prevention measures.
CHANGES TO EXISTING LAW
1. Existing law pertaining to sexual harassment in
business and professional settings, requires that sexual
harassing conduct must be persistent.
This bill would instead require it to be pervasive.
2. Existing law provides that in order for sexual
harassing conduct to be actionable it must continue after
a request by the plaintiff to stop.
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This bill would delete this requirement.
3. Existing law , as contained in the Civil Code, defines
sexual harassment as sexual advances, solicitations,
sexual requests, or demands for sexual compliance.
This bill would define sexual harassment to also include
other verbal, visual or physical conduct of a sexual or
hostile nature based upon gender.
4. Existing law provides damages for violation of Section
51.9 are allowed as under Section 52.
This bill would add specific reference to Section 51.9
(sexual harassment) in Section 52. It would clarify the
civil penalty which applies to violations of 51.7 (hate
crimes) contained in Section 52 would not apply to sexual
harassment cases. The damages allowed would be
injunctive relief, actual damages, punitive damages, and
attorney's fees.
5. Existing law requires that all complaints alleging
sexual harassment in a business or professional setting
must be verified. Answers must also be verified.
This bill would remove the verified complaint/answer
requirement.
COMMENT
1. Stated need for legislation and support
According to the author, "The primary objective of this
bill is to bring the definition and standard of sexual
harassment in Civil Code Section 51.9 into compliance
with other employment and housing discrimination laws.
Currently, Civil Code Section 51.9 creates a
definition of sexual harassment that is different and
inconsistent from that which is used under other code
Sections, including the FEHA, Title VII (Equal Employment
Act), Title VIII Fair Housing Act) and case law. Section
51.9's language establishes inappropriate prerequisites
for a lawsuit that do not exist in any other civil rights
laws or regulations, though the injury is the same."
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Additionally, supporters assert that the bill is needed
in order to prevent the conflicting definitions of sexual
harassment contained in the Civil and Government Codes
from causing interpretation problems in the courts. In
at least one case, the court applied the definition of
sexual harassment found in Section 51.9 to a case brought
under the Fair Employment and Housing Act, Brown v. Smith
(1997) 55 Cal.App.4th 767. This is particularly
problematic, as the definition in the FEHA is the
traditional standard for sexual harassment, and is much
broader than that contained in Civil Code Section 51.9,
they claim.
2. Repealing the requirement that complaints and answers
be verified
This bill would do away with the requirement that
complaints and answers under Section 51.9 must be
verified. "A verification is an affidavit verifying the
truth of matters covered by it. Its object is to assure
good faith in averments or statements of a party to
litigation." McGee v. McNally (App. 1 Dist. 1981) 119
Cal.App.3d 891. Both the sexual harassment sections of
the Civil Code, and the administrative complaint filed
under the FEHA require that complaints must be verified.
The Unruh Civil Rights Act, Section 51 of the Civil Code
does not require verification. Nor is there a
requirement that sexual harassment complaints which are
brought in court under the FEHA (and not through the
Department of Fair Employment and Housing administrative
process) must be verified.
In general, complaints need not be verified; verification
is necessary only if called for by particular statute.
Murrieta Valley Unified School Dist. v. County of
Riverside (App.4 Dist. 1991) 228 Cal.App.3d 1212 rev.
den. In fact, the Wrongful Employment Termination
Practice treatise published by the California State Bar
advises against filing verified complaints, saying:
Although the advantage of filing a verified
complaint is that the defendant is forced to file
a verified answer, this advantage, which may also
be obtained through interrogatories, is not
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compelling. Verifying the complaint limits the
plaintiff to a set of facts very early in the
litigation process, before formal discovery has
uncovered and factual inconsistencies. Because
the plaintiff seldom has access to important
evidence when the complaint is filed, it is
usually the better practice to file an unverified
complaint. Wrongful Employment Termination
Practice (Cont. Ed.Bar 1998) Verifying and Filing
Complaint 9.101, p. 465.
According to the bill's supporters, facts stated in a
verified complaint are sometimes treated as admissions
that cannot be contradicted or omitted from an amended
complaint except on an adequate showing of mistake or
excuse. (Wennerholm v. Stanford University School of
Medicine (1942) 20 Cal.2d 713, 716.) For potentially
unsophisticated victims of sexual or other forms of
discrimination it appears unnecessary and inappropriate
to require such verification, they state.
This proposal seems to set up an inconsistency in the
statutes, as FEHA employment and housing complaints must
be verified, but Civil Code complaints of business or
professional sexual harassment need not be. The
supporters counter that this change is consistent with
the FEHA, as the verified complaint requirements provided
in that statute only apply to the administrative
complaint, and not to complaints filed in court actions.
As Section 51.9 actions are judicial and not
administrative, the lack of a verified complaint
requirement is consistent. However, there is an
administrative exhaustion requirement under the FEHA,
which mandates that a plaintiff make an initial,
verified, filing with the DFEH prior to resorting to the
courts.
Therefore, this would create a different standard.
SHOULD INCONSISTENT VERIFICATION STANDARDS BE CREATED?
3. The conforming changes to Civil Code with other sexual
harassment laws
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a) The "pervasiveness" standard
Section 51.9 currently uses the term "persistent" when
setting forth the showing required to prove sexual
harassment. This term is not used by federal or state
courts, or any administrative agency, in either
employment or housing cases. Instead, both state and
federal decisions have uniformly required a showing
that the harassment be "pervasive" but not necessarily
of a "persistent" nature. (See Fisher v. San Pedro
Community Hospital (1989) 214 Cal.App.3d 590, 608.)
The traditional analysis was provided by the court in
Meritor Savings Bank v. Vinson (1986) 477 U.S. 57,
64-67.). "For sexual harassment to be actionable, it
must be sufficiently severe or pervasive 'to alter the
conditions of [the victim's] employment and create an
abusive working environment.' Whether the sexual
conduct complained of is sufficiently pervasive to
create a hostile or offensive work environment must be
determined from the totality of the circumstances."
Id.
The Webster's Dictionary provides the following
definition of persist: "to go on resolutely or
stubbornly in spite of opposition, importunity, or
warning." Webster's Seventh New Collegiate Dictionary
(972) page 630.
The difference between the two standards is that the
first is based upon the conditions of the
relationship, and how the improper conduct affects
those conditions. The second focuses upon the
continuing of the conduct after requests or attempts
at ending the conduct. As explained below, this
change in terminology is not only consistent with
standards for defining sexual harassment established
elsewhere in the codes, it is also consistent with the
proposal contained in this bill (discussed below) to
do away with the requirement that the plaintiff must
first confront the defendant.
b) The requirement that the plaintiff must first
request the behavior to stop
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Section 51.9 currently provides a cause of action
when, in part, the defendant has made sexual advances,
"continuing after a request by the plaintiff to stop."
There is no comparable requirement under any other
state or federal sexual harassment statute. The
bill's author argues that not only is this requirement
unprecedented, it subjects the plaintiff to potential
danger by forcing a face-to-face confrontation. She
adds that, "This requirement does not recognize that
there are numerous ways women rebuff sexual
harassment, i.e. physically rejecting advances,
removing hands, slamming doors, walking away, etc?.
Also, this requirement is not sensitive to many of the
professional relationships as defined in Section 51.9.
In tenant-landlord relationships, women often wait to
move out before requesting sexual harassing behavior
to stop, so that their living situations are not
jeopardized. In student-teacher relationships, women
wait for the semester to end, so that their grades are
not jeopardized. These are the kind of power
relationships that this statute addresses, and which
may make verbal request nearly impossible for a woman
to make without risk to herself."
c) The definition of sexual harassment
Section 51.9 prohibits "sexual advances,
solicitations, sexual requests, or demands for sexual
compliance." This definition is more narrow than that
developed by the Fair Employment and Housing
Commission, and which the state courts that have used
in interpreting the FEHA. Specifically, the
implementing regulations for FEHA prohibit verbal
harassment (such as epithets, derogatory comments, or
sexual slurs), physical harassment (such as assault,
impeding or blocking movement, or any physical
interference with normal work or movement), visual
harassment (such as derogatory posters, cartoons, or
drawings), and sexual favors (such as unwanted sexual
advances).
In addition, the type of harassment mentioned under
the current provisions of Section 51.9 cover only
"quid pro quo" harassment where the harasser
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conditions some benefit or potential harm to the
plaintiff on sexual favors. It does not cover
hostile environment sexual harassment, a second and
widely recognized form of sexual harassment. This
legislation would add the language, or "other verbal,
visual, or physical conduct of a sexual or hostile
nature based upon gender" in the definition of sexual
harassment, bringing the definition into conformity
with FEHA.
d) Definition of actionable harm
Section 51.9 currently requires the victim of sexual
harassment to show that there is an inability to
easily terminate the relationship without "tangible
hardship." Supporters claim that because tangible
hardship is undefined, it is open to myriad
interpretations. They also state that due to the fact
that no other discrimination statute or regulation
requires a discrimination victim to show such
"tangible hardship", there is also little guidance for
the courts to define what such "tangible hardship" is.
Because of this difficulty, parties may
inappropriately be able to use this undefined level of
hardship to their advantage. For example, a sexually
harassing landlord could claim that the victim of such
harassment did not experience the required "tangible
hardship" simply because the harassing landlord never
actually evicted the tenant. Likewise a college
professor who sexually harasses a student could claim
that he never actually failed the student.
This bill would eliminate the requirement currently
contained in Section 51.9 requiring the complainant to
show that terminating the relationship would cause the
plaintiff "tangible hardship." The bill would
instead provide that the plaintiff has suffered or
will suffer economic loss or disadvantage or personal
injury, including, but not limited to, emotional
distress or the violation of a statutory or
constitutional right. This change brings the harm
standard contained in Section 51.9 into conformity
with other civil rights laws.
e) Damages
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Existing law provides that damages are allowed as
under Section 52. However, Section 52 has a
two-tiered damage structure, one for Sections 51 and
51.5, and another for 51.7. Nowhere does it reference
51.9. This bill would amend Section 52 to reference
Section 51.9, with one key exception: the additional
civil penalty of $25,000 for violations of Section
51.7 (hate crimes) would not apply to sexual
harassment cases. This change would allow for damages
which mirror those allowed under the FEHA, namely:
injunctive relief, actual damages, punitive damages,
and attorney's fees.
4. Conforming the sexual harassment discrimination
standards
Legal analysts have long recognized that the standard
created for sexual harassment under 51.9 is more
stringent than that under the FEHA. As one comment
suggests, the rationale for the "the difference in these
standards may be justified by the difference between
employment and professional relationships-an employee has
fewer choices and may lack the economic resources to
escape from an unhealthy relationship." Gerrish, Sexual
Harassment in Professional Relationships: A New Statute
and New Questions, CEB California Business Law Reporter,
1996, page 216. The question arises as to whether it is
appropriate to conform the two standards for sexual
harassment-or whether the differences in the two
situations (professional/client and employer/employee)
justify continuing differential treatment.
The stated policy behind the prohibition against the FEHA
employment discrimination is that employment
discrimination foments domestic strife and unrest,
deprives the state of the fullest utilization of its
capacities for development and advance, and substantially
and adversely affects the interest of employees,
employers, and the public in general. Government Code
Section 12920. The policy behind Section 51.9 of the
Civil Code is to recognize that "sexual harassment occurs
not only in the workplace, but in relationships between
providers of professional services and their clients."
Stats. of 1994, Ch. 710 1.
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As the author stated above, the provisions of the Civil
Code address situations where victims may not easily
escape their harassers. For instance, a student may be
forced by his or her major requirements into remaining in
a course which is only taught by a teacher who is
sexually harassing them. Additionally, landlord/tenant
situations may be difficult to escape. The Cities of
Berkeley and Santa Monica support the bill based upon the
impact that tight real estate markets, especially
rent-control jurisdictions, have on the ability of a
victim to escape her landlord harasser. "Santa Monica has
a low vacancy rate and thus there is a great demand for
housing units. It is a ripe area for abuse of tenants by
landlords." Similar logic can be applied to a client who
has invested heavily in a lawsuit. If the attorney is
sexually harassing the client it may be difficult, if not
impossible, to escape the situation without jeopardizing
their claim.
It would seem that in many situations anticipated under
Civil Code Section 51.9, it is very difficult to escape
the situation without substantial difficulty. If
difficulty in escaping a situation is the logic which
justifies the traditional standard for sexual harassment,
(as opposed to the more stringent standard currently in
51.9) this bill seems consistent with that logic.
Support: California Commission On The Status Of Women;
California NOW;
California School Employees Association; California
Women Lawyers; California Women's Law Center;
Consumer Attorneys of California; Equal Rights
Advocates; OWL-California; Planned Parenthood Golden
Gate; Western Center on Law and Poverty; City of
Santa Monica; City of Berkeley
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
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Prior Legislation: None Known
Prior Vote: Assembly Judiciary Committee 10-2; Assembly
Floor 52-18
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