What School Board Members Need to Know about the #MeToo Movement in California

Eve P. Fichtner, Partner, and Jessica T. GasbarrO, Senior Associate Atkinson, Andelson, Loya, Ruud & Romo

When the #MeToo Movement gained momentum during the 2017-18 school year, school officials predicted a rise in sexual harassment complaints by students and employees. Many of our clients confirmed this to be true, and the trend is likely to continue. Additionally, we are seeing these complaints “go viral.” School Boards can better prepare for these complaints by reviewing sexual harassment policies, procedures, and practices that may be outdated, underused, or inconsistently implemented. Attention should also be given to media relations and social media policies so Board members are aware of how to communicate with the media. While online posts can be an important communication tool, Board members must understand their role under their policies and the Brown Act.

With the spotlight on #MeToo in the media, it is crucial that entities understand the rights of individuals to have a voice in the process. Both complainants and respondents must be given the opportunity to be heard. We have noticed an overuse of explicit or implicit “gag orders” to silence complainants and respondents especially during the investigation process. This practice can be contrary to free speech, Title IX and Title VII. On the other hand, social media and electronic news may get out of hand if not properly monitored and navigated. Boards should be aware that all investigations must be handled thoroughly and promptly, but some may require the approval of outside investigators who can navigate these legal issues.

Districts should inform themselves regularly of any legislative updates that may affect sexual harassment policies and training responsibilities. Below are a few new California laws related to the #MeToo Movement.

  • AB 2770: Governor Brown signed AB 2770 on July 9, 2018, to protect sexual harassment victims and employers from being sued for defamation by alleged harassers. The bill passed with unanimous, bipartisan support and expanded the definition of “privileged publication or broadcast,” as defined in Civil Code section 47(c). These communications are now privileged: (1) a complaint of sexual harassment by an employee, without malice, to an employer based on credible evidence, and (2) communications between the employer and interested persons regarding a complaint of sexual harassment. Under AB 2770 an employer may answer, without malice, whether the employer would rehire an employee and whether a decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment. Prior to AB 2770, the fear of defamation, libel, and/or slander silenced many sexual harassment victims. Now, victims may feel safe to come forward under these protections.
  • S.B. 820, THE STAND TOGETHER AGAINST NON-DISCLOSURE ACT: Signed on September 30, 2018, this bill eliminates non-disclosure agreements in sexual harassment settlements altogether unless the victim requests such a provision.
  • AB 2128: Signed on September 27, 2018, this bill amends the Education Code to allow, in certain circumstances, the presentation of evidence of prior sexual harassing behaviors by teachers against students during a dismissal hearing, even if the teacher’s misconduct occurred more than four years from the date of the dismissal charges.
  • S.B. 1300/1343: Signed on September 30, 2018, an employer must, among other things, provide sexual harassment prevention training to employees, not just supervisors, starting in January 2020.

As noted above, we encourage Districts to enhance preventative measures to combat the sexual harassment climate. For more information concerning sexual harassment prevention training, or policy updates, contact the author or your trusted counsel at AALRR.