Stalking Victims Receive Employment Protection in California

By Adams, Nye, Becht LLP
on November 7, 2013

file000106872276.jpgOn October 11, 2013, Governor Brown signed SB 400, a bill that expands job protections for victims of stalking behavior, including domestic violence and sexual assault victims. This new law prohibits employers from terminating, discriminating, or retaliating against employees who are stalking victims if the employer knows of the employees' victim status. It also requires that employers provide reasonable accommodations for those employees (e.g. transfer to new office or new extension number) in order to ensure the safety of such victims. Further, the new law prohibits employers from retaliating against employees for requesting reasonable accommodations.

An employer provides reasonable accommodation when it modifies or adjusts the work environment to allow an employee to continue doing the same work. For an employee subject to this law to receive accommodation, the employee must request one in writing. The employer may request proof of the employee's victim status. The resulting work modifications can be varied from transfers, modified work schedules, to new locks and phone numbers. An employer does not need to provide these accommodations, however, when the employee has not revealed the stalking behavior, or when doing so would impose an undue hardship on the employer. Undue hardship can include accommodations that are too costly to the employer. In order for an employer to maintain that accommodating an employee poses an undue hardship, the same standard used to evaluate undue hardship for purposes of disability discrimination under the Fair Employment and Housing Act is to be employed.

This law mirrors existing provisions of California law that already protect employees who take time off from work to address domestic violence or sexual assault issues and extends it to victims of stalking. For example, employees can seek counseling or medical treatment, or appear in court. The existing law prohibits employers from taking adverse employment actions--such as firing or refusing to promote them--against these employees. If an employer discriminated or retaliated against the employee because the employee took time off for one of these protected reasons, the employee can get reinstated with back pay and benefits. Moreover, an employer that intentionally does not restore a terminated employee or passes over an employee eligible for promotion may be guilty of a misdemeanor.

This law emerged as a result of studies and cases of employees who demonstrated job loss and other adverse employment actions because of their status as a victim of domestic violence, sexual assault or stalking. According to the Center for Disease Control and Prevention, more than thirty percent of women have experienced some form of rape, stalking, or physical violence. And a recent study from the Legal Aid Society's Employment Law Center (which was a sponsor of this law), also found that nearly 40 percent of survivors of domestic violence, sexual assault and stalking reported that they were fired or that they feared termination. The importance of this law was widely recognized through a diverse group of supporters, from the US Women's Chamber of Commerce to the California Labor Federation. Addressing important public concerns to prevent women who are already vulnerable from becoming further subject to adverse employment actions and thereby becoming further financially vulnerable this law provides some degree of employment protection to such employees.

Pursuing a civil action with the help of an attorney will be further aided by the attorney fee provisions in the law that allows attorney fees to be awarded to a prevailing party. Any employee who feels discriminated or retaliated against for taking time off because of domestic violence, sexual assault, or now stalking, should consult an attorney and investigate whether to file a complaint with the Division of Labor Standards Enforcement in the Department of Industrial Relations.