Erick Becker
#4 Expansion of protections for victims of domestic violence, sexual assault and stalking
California previously enacted protections for victims of domestic violence and sexual assault, primarily the right to take a leave of absence to appear for legal proceedings, or to take leave for medical or psychological treatment or for safety planning (only if the employer employs more than 25 employees). Employers are prohibited from discriminating against employees who request or take leave. Employees who did not request a leave were not necessarily protected from discharge or discrimination, however, under the previous version of the law.
Senate Bill 400 greatly expands these protections. First, all employers are prohibited from discriminating or retaliating against employees who are known to be victims, whether they take a leave or not. Further, victims may request a reasonable accommodation and employers must engage in a good faith, interactive process to determine if the accommodation can be made, essentially paralleling the procedures for employees with disabilities. With these amendments to the Labor Code, domestic violence and sexual assault victims have become a protected classification on par with race, religion, sex, national origin, etc. Finally, the law now enshrines these same protections for victims of stalking.
With this new legislation, employers face added risks in dealing with employees who are known to be victims, because any adverse action or failure to accommodate could give rise to a lawsuit – and as in most other employment litigation, the prospect of the award of attorney’s fees will attract employee rights attorneys. As with other protected classifications, employers should be careful to thoroughly document any discipline or other potentially adverse actions involving a known victim to dispel the inference of a discriminatory or retaliatory motive. Moreover, any request for accommodation should be considered and granted unless it is clear that an undue hardship to the employer would result.
