The Chamber

AB 1740 would add a new, protected classification under the Fair Employment and Housing Act (FEHA) for victims of domestic abuse, sexual assault, and stalking. We are certainly sympathetic to individuals who endure such events. However, creating a new, protected classification for these individuals under FEHA will increase the already significant burden on employers to conduct business in California and will expose such employers to costly litigation.

AB 1740 seeks to prevent employment discrimination against employees who have been threatened with or are victims of domestic abuse, sexual assault, and stalking, as well as employees whose family members are actual or threatened victims of domestic abuse, sexual assault, or stalking. Unlike other existing protected classifications under FEHA that are more objective, determining who is a victim of domestic abuse, sexual assault, or stalking is a daunting task. AB 1740 will force an employer into a judicial role to determine when a crime of domestic abuse, stalking, or sexual assault has occurred for purposes to trigger protection under FEHA. Employers are not in a position to make such decisions and should not be forced into making one by AB 1740.

Moreover, AB 1740 will require employers to inquire into an employee’s personal life, outside of work, thereby placing them in a legal predicament. California Labor Code section 96(k) precludes employers from taking any action based upon off-duty conduct. Article 1, Section 1 of the California Constitution also recognizes that employees have a legal right to privacy in their personal lives and relationships. AB 1740 would blur the distinction between personal and workplace issues. Employers will be forced to choose between a claim of discrimination under AB 1740 by failing to discover the employee or the employee’s family member is a victim or potential victim, or a claim for invasion of privacy and violation of the labor code, because the employer inquired into the employee’s off-duty, personal life.

AB 1740 further requires an employer to accommodate an employee who is a victim of domestic abuse, sexual assault, or stalking with safety measures. Unlike an employer’s duty to accommodate an employee’s physical disability, the extent of which is generally documented by a medical provider, there is no clear guidance upon which an employer can rely in order to determine what qualifies as a reasonable accommodation for purposes of domestic violence, sexual assault, or stalking. Additionally, it is unclear how long an employer must accommodate a victim of domestic abuse, stalking or sexual assault, especially if the employee does nothing to remove him or herself from the situation. This duty to accommodate under AB 1740 will require an employer to constantly monitor an employee’s personal life to determine when activities have triggered a duty to accommodate versus when events have calmed down enough to remove the duty. As set forth above, this will certainly expose the employer to costly litigation, as well as interfere with the employer’s ability to efficiently operate his or her business.

Finally, there are already significant protections in place for victims of domestic abuse, sexual assault, and stalking. Labor Code sections preclude an employer from discriminating or retaliating against an employee who is a victim of domestic abuse or sexual assault and provides the employee with an indefinite protected leave of absence to seek medical attention, services, counseling, or attend criminal proceedings. Additional Labor Code sections extends workers’ compensation benefits to employees who are victims of crime at the workplace, and prevents an employer from discriminating on that basis. The Code of Civil Procedure allows an employer to obtain a restraining order on behalf of an employee who has suffered or has been threatened with unlawful violence. There is simply no evidence to suggest that the additional protections proposed by AB 1740 are necessary in light of the existing protections, especially in comparison to the significant burden and cost of litigation AB 1740 will create for employers.