workplace violence

New Law Prohibits Sexual Orientation Violence

Existing law prohibits “gender violence.” Gender violence includes, “A physical intrusion or physical invasion of a sexual nature under coercive conditions.”  It does not matter whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.  However, gender violence could also include conduct that would:

constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.

New Law Prohibits Sexual Orientation Violence

Effective January 1, 2016, a new law expands protection to persons suffering violence as a result of their sexual orientation.  AB 830 amends the definition of “gender” under Civil Code 52.4, and adds Civil Code 52.45.  This new law prohibits sexual orientation violence.  Like gender violence, sexual orientation violence includes, conduct that would:

constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the sexual orientation of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction.

Unlike gender violence, sexual orientation violence does not include the broader “physical intrusion or physical invasion of a sexual nature under coercive conditions” definition.  It’s not clear why the legislature decided to afford less protection when the violence is based on sexual orientation as opposed to gender.

Why is this important to employers and employees?  The existing law and the amended law state:

Notwithstanding any other laws that may establish the liability of an employer for the acts of an employee, this section does not establish any civil liability of a person because of his or her status as an employer, unless the employer personally committed an act of gender [or sexual orientation] violence.

This means that an employer is not liable under these code sections for gender or sexual orientation violence unless the employer is the one that commits the violence.  Employers can still be liable for sexual harassment and sexual orientation harassment, and violence against employees based on their gender or sexual orientation would certainly qualify as unlawful harassment.

Employers must continue training their supervisors and employees regarding the importance of maintaining a safe and healthful work environment.  Employees subjected to intimidation, coercion, or threats of violence should report the problems to the employer immediately.  If your physical well-being is at risk, you may also need to contact local law enforcement.  In a perfect world, employees and employers will work together to eradicate violence in the workplace.  Until we get there, these new laws may help protect people for violence.

Original article by Robert E. Nuddleman of Nuddleman Law Firm, P.C.

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