UPDATE: A Sacramento judge decided on September 25, 2018, to toss one allegation in this suit, agreeing with the Senate that the whistleblower law for legislative employees does not apply to this case because it is not retroactive. The court disagreed with the Senate’s argument that the Legislature does not have to follow state labor laws, allowing that aspect of the case to proceed to trial.
In one of the first legal challenges since the #MeToo movement forced the California Legislature to confront its history of dismissing sexual misconduct in its own workplace, the Senate is trying to fend off a former employee’s lawsuit with arguments that she’s not covered by new whistleblower protections and that the Capitol, as part of the public sector, isn’t covered by state labor laws.
The state Senate made the arguments in a recent court response to a lawsuit by a former employee who alleges that the Senate broke eight different laws in firing her several months after she reported that she was raped by a fellow staff member—including laws that prohibit retaliation and require employers to accommodate workers experiencing disabling trauma. The Senate is asking the court to throw out half the allegations in advance of a hearing on Tuesday.
It’s not unusual for parties being sued to mount as many arguments as possible to try to dismiss the charges against them. Still, the Senate’s filing is a stark reminder of the institutional pushback facing workers who allege misconduct—even, in this case, after politicians spent months publicly acknowledging the Capitol’s problems, crafting plans to improve the workplace climate and passing laws meant to curb harassment. The filing is also the latest example in the Legislature’s long history of arguing that lawmakers don’t have to follow all the laws they pass.
“The Legislature really needs to stop taking the position that the law doesn’t apply to them. It’s offensive,” said Micha Star Liberty, the lawyer for the employee who sued the Senate.
Senate leader Toni Atkins declined to comment, saying she cannot discuss pending litigation. Atkins is the first woman to lead the upper house and was seen as someone who could improve the Capitol’s harassment problem when she was chosen for the post earlier this year.
The employee, who is not named in court documents because she is a victim of sexual assault, sued the Senate in May. Her lawsuit says a night socializing with other staff members in December 2016 ended with her being assaulted.
After that, the suit says she began taking time off from work to deal with the “physical and emotional injuries and disabilities caused by the rape.” Over the ensuing months, it describes her experiencing panic attacks and difficulty sleeping, being diagnosed with posttraumatic stress, and ultimately being hospitalized after attempting suicide. She was fired in September 2017, the suit says, for what her boss claimed were work performance issues. The employee says she was fired for taking time off to deal with the ramifications of her assault.
One of the laws she alleges the Senate broke is a section of the state labor code that prohibits employers from firing or retaliating against rape victims who miss work to seek counseling or medical care. The Senate argues that this law only applies to private employers—not the government.
“The code section does not specify that it applies to public entities,” the Senate’s lawyers wrote.
Lawmakers considered a bill this year to, among other things, explicitly say this section of law applies to public employers including the Legislature. But after several iterations, the effort stalled.
The filing also asks the court to toss the employee’s claim that the Senate violated new whistleblower protections for legislative staffers. The whistleblower law was signed in February as one of the #MeToo movement’s first legislative victories. It extends whistleblower protections state law bestows on other government employees to those who work for the Legislature.
But the Senate argues that the law is not retroactive, and that the employee was fired months before it passed.
“This statute does not apply to plaintiff’s employment, which ended well before this statute went into effect,” lawyers for the Senate wrote.
The whistleblower law has become a flashpoint in the Capitol’s reckoning with harassment. For four years in a row, the Assembly passed it with overwhelming bipartisan support only to see it die in the Senate’s appropriations committee, where bills can be killed without a public vote. After the #MeToo movement erupted, the bill was resurrected and swiftly passed.
Assemblywoman Melissa Melendez, who wrote the whistleblower law, said she tried to make it retroactive but met resistance from fellow legislators.
“That was something that was not going to be allowed in the bill,” Melendez said.
She blamed a former Senate leader for blocking earlier versions of the bill, thus throwing a wrench in the whistleblower part of the employee’s lawsuit:
“If Kevin de León hadn’t blocked the bill for four years we wouldn’t be having the conversation because the bill was introduced in 2014, well before this alleged incident took place.”
De León argues that early versions of the bill didn’t cover sexual harassment, a point Melendez disputes.