How to Comply With California's Expanded Anti-Harassment Training Requirements



In late 2017, California Gov. Jerry Brown signed Senate Bill 396, which expanded existing supervisor training requirements for employers. Under the bill, beginning in January 2018, content on harassment based on gender identity, gender expression and sexual orientation must be included in the training.

California law and regulations require employers in the Golden State with 50 or more employees to provide sexual harassment prevention training to all supervisors located in California. New supervisors must receive the training within six months of appointment to the position with supervisory authority. At a minimum, supervisors must receive training every two years.

Harassment Under California FEHA

The California Fair Employment and Housing Act (FEHA) prohibits harassment and discrimination and requires covered employers to implement measures to prevent harassment.

FEHA's anti-harassment provisions apply to organizations that regularly employ one or more people. FEHA applies to public and private employers.

A crucial step in harassment prevention involves training any employee with supervisory authority, which is defined as:

• The authority to exercise independent judgment to hire, transfer, promote, discharge, assign, reward or discipline other employees.
  
• The responsibility to direct them or address their grievances.
  
• The authority to recommend any of the preceding actions.
  

Harassment Prevention Training

The harassment prevention training for California supervisors must include the following information:

• A definition of unlawful conduct under FEHA and Title VII of the Civil Rights Act of 1964.
  
• FEHA and Title VII provisions and case law principles concerning the prohibition against and the prevention of sexual harassment, discrimination and retaliation in employment.
  
• The types of conduct that constitute sexual harassment.
  
• Remedies available for sexual harassment victims in civil actions and potential employer or individual liability.
  
• Strategies to prevent sexual harassment in the workplace.
  
• An explanation about the limited confidentiality of the complaint process.
  
• Practical examples that illustrate sexual harassment, discrimination and retaliation.
  
• Resources for victims of harassment.
  
• The employer's obligation to conduct an effective workplace investigation of a harassment complaint and take remedial measures to correct harassing behavior.
  
• A supervisor's obligation to report any complaints of sexual harassment, discrimination and retaliation of which they're aware to a designated corporate representative, such as a human resource professional, so the employer may try to resolve the claim internally.
  
• How to prevent abusive conduct.
  
• What the supervisor should do if he or she is personally accused of harassment.
  
• The essential elements of an anti-harassment policy, and how to use it if a complaint is filed.
  

Understanding Workplace Harassment Laws

Supervisors should be aware of the legal definition of sexual harassment. Sexual harassment means subjecting someone to any unwanted or unwelcome sexual advance, visual or physical conduct of a sexual nature, requests for sexual favors, or offensive third-party conduct (such as harassment by a contractor or customer). Someone alleging sexual harassment is not required to sustain a loss of tangible job benefits—such as being fired or demoted—to establish harassment.

There are two types of sexual harassment recognized by federal and California law: quid pro quo and hostile work environment.

An employee is subject to quid pro quo harassment when a term of employment is conditioned upon accepting unwelcome advances of a sexual nature. Quid pro quo (meaning "something for something") is conditioning a job or promotion on an applicant's or employee's submission to sexual advances or other conduct based on sex.

In a hostile work environment claim, the employee must show that unwelcome comments or actions based on sex were severe or pervasive enough to interfere with the employee's work performance or created an intimidating, hostile or offensive work environment.

[SHRM members-only HR Q&A: What are the different types of sexual harassment]

It is no defense to a claim of sex discrimination that the harassing conduct was not motivated by sexual desire.

Harassment Under Municipal Laws

There are numerous local ordinances governing discrimination and harassment, such as in Los Angeles and San Francisco. These local laws generally apply to employers doing business in the city or county limits and may expand on employee rights under FEHA.

Transgender employees are protected from discrimination and harassment under California state law as well as under various municipal laws that protect gender identity and gender expression. Municipalities that prohibit discrimination and harassment in public and private employment on the basis of gender identity and expression include Los Angeles, Oakland, San Diego, San Francisco, San Francisco County, Santa Cruz, Santa Cruz County and West Hollywood.

Further, additional jurisdictions prohibit discrimination in public employment based on gender identity and expression, including Alameda County and San Jose.

Comprehensive Training Programs

Employers in California may face increased liability for failing to take all reasonable steps necessary to prevent discrimination and harassment from occurring, adding further impetus for employers to institute a comprehensive anti-discrimination training program.

A California employer should note that discrimination and harassment may be based on protected classes other than sex, sexual orientation, or gender identity or expression.

FEHA includes the following as protected classes:

• Race.
  
• Religious creed.
  
• Color.
  
• National origin and ancestry.
  
• Physical or mental disability.
  
• Medical condition.
  
• Genetic information.
  
• Marital status.
  
• Sex/gender.
  
• Gender identity/gender expression.
  
• Pregnancy.
  
• Age (40 and over).
  
• Sexual orientation.
  
• Military and/or veteran status.
  

Marta Moakley, J.D., is a legal editor with Brightmine HR & Compliance Centre™.

Visit Brightmine for more information on California Sexual Harassment Training for Supervisors.

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