Calif. Harassment Training May Add Gender Identity and Sexual Orientation

State lawmakers sent S.B. 396 to the governor for signature or veto

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Update: Gov. Jerry Brown signed this bill on Oct. 15. The new law will take effect in January 2018. 

The California state legislature has approved a bill that would expand required training for supervisors to prevent sexual harassment to include gender identity, gender expression and sexual orientation. Employment attorneys told SHRM Online that Gov. Jerry Brown will likely sign the bill.

Brown has signed pro-LGBT legislation in the past, and the legislative votes were overwhelmingly in favor of this bill, said John Baum, an attorney with Hirschfeld Kraemer in San Francisco.

If this bill, S.B. 396, is signed into law, it might not change much for employers. Many employers seek to promote fairness in the workplace and are proactive about training on a variety of harassment topics—not just sexual harassment, Baum said.

S.B. 396 doesn't extend the minimum duration of training or impose any other new requirements for the training, explained Eric Akira Tate at Morrison & Foerster in San Francisco. He said his firm has already been including these topics in its training, particularly since gender identity, gender expression and sexual orientation are protected categories under the California Fair Employment and Housing Act (FEHA).

Training Requirements

FEHA already requires businesses with 50 or more employees to provide sexual harassment training to supervisors every two years.

"Such training must cover guidance about federal and state laws prohibiting harassment and provide practical examples for supervisors to help prevent harassment, discrimination and retaliation," said Michael Stevens, an attorney with Seyfarth Shaw in San Francisco. It further requires that the training be provided by trainers or educators with knowledge and expertise in those areas, he noted. 

S.B. 396 would add a requirement for employers to provide practical training to supervisors to prevent harassment of lesbian, gay, bisexual and transgender (LGBT) employees—as well as those who are perceived as LGBT, Stevens said.

Tate noted that a similar amendment a few years ago required that the topic of abusive conduct—i.e., bullying—be incorporated into the training. "S.B. 396 just adds another topic to cover," he said.

Compliance Tips

The bill would require all employers to display a poster about transgender rights in a prominent place, such as a cafeteria or meeting room where employment posters are usually displayed, Baum said, noting that the Department of Fair Employment and Housing would develop the poster.

Businesses with 50 or more employees would also need to revise their anti-harassment training every two years for supervisors to cover the newly required topics. "Employers should ask questions of the trainers to ensure that they have adequate experience in preventing harassment of LGBT employees," Stevens said.

This bill should serve as a reminder for employers to take a close look at their existing training to ensure they are complying with all the requirements, Tate noted.  He said employers should be sure to:

  • Keep a record of who attends the training.
  • Follow up with newly hired managers to make sure they get the training within six months of hire. 
  • Confirm with the training provider that the content includes "abusive conduct" on the off chance that it was missed in prior years. 
  • Consider whether the training is sufficiently engaging and interactive to maximize the likelihood that the attendees will retain what they learned. 

While it's not legally required, Tate said, employers should consider whether it makes sense for their workplace to train other employees besides managers or to conduct training on topics beyond the statutorily required ones. For example, he said, employers may want to train on implicit bias, microinequities or other topics that may not directly result in legal exposure, but may nonetheless impact the working environment, employee comfort and productivity. 

 

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