Summer 2019 Defense Comment 11 Continued on page 12 T he #MeToo and #TimesUp movement has changed the cultural and political discourse regarding sexual harassment on a national scale. The movement has resulted in an increased awareness of sexual harassment in the workplace, and a greater focus on prevention. Another result of the movement is a societal shift in which open, honest conversations about sexual harassment, discrimination, and misconduct tend to be encouraged rather than stifled. The California Legislature has responded to this change with three new laws which expressly codify or reject certain California and Ninth Circuit case law, place limits on confidentiality terms in settlement agreements and other contracts, and amend the Fair Employment and Housing Act (“FEHA”) with respect to certain employment practices related to workplace sexual harassment. Codification and Rejection of Certain California and 9th Circuit Harassment Case Law SB1300enactedGovernmentCodesection 12923 and declares the Legislature’s intent regarding the legal standard to prove liability for discrimination, retaliation, and harassment claims under FEHA.1 Most notably, the Legislature declared that “[a] single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment,” thereby rejecting the Ninth Circuit’s opinion in Brooks v. City of San Mateo.2 This is a major change expected to hamper a defendant’s ability to dispose of sexual harassment claims via dispositive motions. The result: many #MeToo Movement Sparks a Trio of New California Employment Laws Laura McHugh, Duggan Law Corporation sexual harassment complaints which previously may have been disposed of on a motion to dismiss or motion for summary adjudication under the reasoning of Brooks will have a higher likelihood of heading to trial, barring pre-trial settlement, and likely will be more costly to defend. Limitations on the Use of Non-Disparagement and Confidentiality Agreements and FEHA Waivers SB 1300 also enacted California Government Code section 12964.5, which prohibits employers from requiring employees to sign a release of a claim or right arising under FEHA, including the right to file a civil action or complaint with a state agency, a law enforcement agency, or any court or other governmental agency, in exchange for a raise or bonus, or as a condition of employment or continued employment.3 Employers are also prohibited from requiring employees to sign any agreement that prohibits their disclosure of information pertaining to sexual  harassment  or other unlawful or potentially unlawful conduct in the workplace.4 The scope of “other unlawful or potentially unlawful conduct” is unclear; however, based on the plain language, the new statute seems to prohibit non-disparagement agreements regardingsubjectsfarexceedingjustsexual harassment. For example, suppose employee Mitu complains about her supervisor, Tymesup, who regularly makes sexually suggestive and inappropriate comments to Mitu in the breakroom. Mituisveryupsetandfilesacomplaint with Human Resources. Following an internalinvestigation,Tymesupisfired. Mitu expresses that she is satisfied with the outcome of the investigation, and her morale improves. Out of an abundance of caution, the Human Resources Manager asks Mitu to sign a statement that she will not pursue a FEHA claim against the company, will not disparage Tymesup in any social media postings, and will not discuss the matter with her fellow employees. Requiring Mitu to sign the statement would be unlawful pursuant to section 12964.5. If an employer requires an employee to enter into an agreement or sign such a statement that runs afoul of section 12964.5, it is unenforceable. However, the consequences for employers who violate this law are more serious. An employee who has been required to enter into one of these unenforceable agreements can sue for damages. Importantly, however, Government Code section 12964.5 specifically does not apply tonegotiatedsettlementagreements.5 So,if the agreement is a negotiated resolution of a lawsuit, an agency complaint, or even an internal complaint brought by an employee, then the employer may indeed require a release of FEHA claims, and an agreement not to bring any additional FEHA claims arising out of the matters contemplated in the agreement. The employer also may include the other standard releases that a negotiated settlement agreement typically