Can California Eliminate The “One Free Grope” Rule?

California has been on quite a tear lately, legislating a wealth of laws for the purpose of signaling that it’s doing something about the #MeToo nest of vipers in its most woke and progressive communities. Let’s face it, there’s some cause for embarrassment to learn that the strongest supporters of social justice all prayed at Harvey Weinstein’s shower. So they’ve been busy, leading the legislative way, which its advocates gave the hashtag #takethelead bills.

SB1300, in the words of the ironically-named advocacy group, Equal Rights Advocates, “fighting for women’s equality,” was a nail-biter.

SB 1300 closes loopholes in California’s current sexual harassment laws, proposing several important reforms:

  • Provides guidance to California courts on the “severe or pervasive” legal standard for sexual harassment claims, to ensure the standard is consistently and fairly applied to better protect victims. This clarification addresses the “one free grope” standard that was confirmed by the 9th Circuit federal court in 2000.

What this refers to is the Ninth Circuit’s decision in Brooks v. City of San Mateo, written (ironically) by Judge Alex Kozinski.

Our story begins when Patricia Brooks, a telephone dispatcher for the City of San Mateo, California, and her coworker, senior dispatcher Steven Selvaggio, manned the city’s Communications Center, taking 911 calls on the evening shift. At some point during the evening, Selvaggio approached Brooks as she was taking a call. He placed his hand on her stomach and commented on its softness and sexiness. Brooks told Selvaggio to stop touching her and then forcefully pushed him away. Perhaps taking this as encouragement, Selvaggio later positioned himself behind Brooks’s chair, boxing her in against the communications console as she was taking another 911 call. He forced his hand underneath her sweater and bra to fondle her bare breast. After terminating the call, Brooks removed Selvaggio’s hand again and told him that he had “crossed the line.” To this, Selvaggio responded “you don’t have to worry about cheating [on your husband], I’ll do everything.” Selvaggio then approached Brooks as if he would fondle her breasts again. Fortunately, another dispatcher arrived at this time, and Selvaggio ceased his behavior. Soon thereafter Selvaggio took a break and left the building. Brooks immediately reported the incident and, the following day, the city placed Selvaggio on administrative leave pending an investigation.

The question has nothing to do with whether Selvaggio’s conduct was acceptable. It was not. The question is whether the City was liable for Selvaggio’s conduct.

This, it turned out, was not the first time Selvaggio had made improper advances to co-workers. At least two other female employees, including Pat P., another senior dispatcher, had been subjected to similar treatment from Selvaggio. However, Selvaggio’s earlier victims had not reported his misconduct. Only after the city launched its investigation into Brooks’s allegations did these other incidents come to light.

The problem for Brooks was that Selvaggio’s prior misconduct was unreported, meaning that while it presumably happened, the City didn’t know. The secondary problem was whether this one instance, standing alone, met the standard of “severe and pervasive” to establish a hostile work environment. While noting that it was not impossible for a single instance of conduct to be sufficient to meet the test, the “isolated incident” here failed to suffice, since the prior incidents were unknown to the City.

SB1300 expressly disavows this position, which is characterized by activists as the “one free grope” rule. It’s critical to emphasize that this isn’t to condone the grope, but to give rise to vicarious liability of the employer for what its employee did. The question isn’t how horrible it was for the victim, or the severity of damages she suffered as a result, but whether the employer is liable for a groping employee when it has no reason to know that he’s a groping groper until after he gropes.

(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

Notably, the “condition” expressed in the legislative intent is a non sequitur, that a single incident of “harassing conduct,” which isn’t defined, is sufficient if its impact does harm. The condition makes no sense, as it’s both a requisite element anyway and bears no nexus to the core question of how an employer is supposed to address something that has yet to happen. What this really suggests is strict liability, though the statute isn’t quite so clear:

(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.

While this covers everything from soup to nuts, including every conceivable path to victimhood and potential “harasser” including nonemployees, it also includes the language “knows or should have known” plus “fails to take immediate and appropriate corrective action.” With such vagaries, the message appears clear that the only way an employer can avoid liability is to immediately remove any employee against whom an accusation of harassment is made, and eject or terminate any connection to any non-employee.

Obviously, even the State of California can’t mandate employers actually be able to see into the future, so the only out for strict liability is to take extreme action immediately upon the first alleged grope. Whether this closes a loophole or creates a nightmare is according to which side of the accusation one’s on. For an employer, however, the only certain path out of potential liability is clear as they may not be technically liable for failure to see into the future, but the outcome will be the same.

7 thoughts on “Can California Eliminate The “One Free Grope” Rule?

  1. Guitardave

    I can see it now….HR managers tasked with avoiding “future” problems…
    ..in the fine print at the bottom of the job app….”Un-castrated males need not apply.”

        1. SHG Post author

          CA makes that a problem with its exceptionally woke inclusiveness:

          race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status

          As the kids say about their dating status, “it’s complicated.”

          1. Ross

            So, separate offices for everyone, all with private entrances to the outside, except for older white males, because it’s time they learn what it’s like to not have all that privilege stuff. They get a couple of orange crates in the basement, with a sewer pipe dripping on them.

  2. Rigelsen

    So, we have to depend on the foresight of Gov Moonbeam to prevent this travesty of a bill from becoming law? God help us all… Californians. I’d give odds of 5 to 1 he lets us down. Though he has shown an occasional clue.

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