November 5, 2018
California is paving the way for the rest of the country with its comprehensive sexual harassment prevention training laws. Recently, the California legislature enacted mandates requiring employers to provide prevention training to all their employees in order to reduce the instances of inappropriate and discriminatory behavior.
California has been forward-thinking about prevention for over a decade, stemming back to AB 1825 harassment prevention training requirements in 2004. Four new California harassment prevention bills were signed by Governor Jerry Brown in September 2018 to add further protection for employees and eliminate outdated and unethical workplace policies.
These mandates follow the rise of the #MeToo and #TimesUp movements, which have revealed the pervasive nature of workplace sexual harassment. To avoid litigation, employers need be aware of these significant changes as California lawmakers have redefined the size of the organizations that are required to participate in sexual harassment prevention training as well as what’s included in the curriculum.
California AB 1825
While it continues to be updated, California AB 1825 provided a starting point for sexual harassment and discrimination prevention training in the workplace. The foundation of California’s sexual harassment training mandates, AB 1825—also called the California Fair Employment and Housing Act (FEHA)—was passed by Governor Arnold Schwarzenegger on September 30, 2004. Under this law, only employers with 50 or more employees were required to provide two hours of interactive sexual harassment prevention training to only supervisors within the organization on a biennial basis. AB 1825 gave employers six months from a supervisor’s date of hire to complete the instruction.
Along with mandating employers to provide these programs, AB 1825 specified what was to be covered in the curriculum. Under this law, training had to include information that heeded federal and state guidelines for the prevention and correction of sexual harassment. Moreover, supervisors were to be trained on the remedies available to victims of sexual harassment. Organizations were also required to provide supervisors with examples of the following:
California’s existing sexual harassment prevention laws mandate employers to display sexual harassment information posters and provide information sheets on the topic at the request of employees.
AB 1825 (or any other law for that matter) does not excuse an employer from liability in instances of sexual harassment in the workplace. Businesses are responsible for the safety of current employees and new hires. Through a broader scope of employees required to take the training, as well as a tighter threshold for how many employees qualify a business for the law, California SB 1343 has since enhanced minimum standards once set in place by AB 1825.
California SB 400
Though not a mandate regarding harassment prevention training, SB 400 increases protection for employees that are victims of domestic violence, stalking, or sexual assault. When this mandate passed on October 11, 2013, it became illegal for employers to take “adverse employment action” against employees on the basis of their status as a victim.
This protection covers employer retaliation, discrimination, or discharge, so long as the employee has provided a certified notice to the employer. Acceptable forms of notice include:
- A police report recounting the related incident
- A court order of protection or separation from perpetrator
- Documentation from a licensed medical professional or counselor
Furthermore, an employer must legally provide reasonable accommodations to victims in an effort to ensure their safety while at work. Accommodations include, but are not limited to:
California AB 2053
To address all types of destructive behavior in the workplace, California lawmakers continue to draft bills aimed at protecting employees while at work. Also sometimes identified as the “anti-bullying law,” AB 2053 requires employers to include the prevention of abusive conduct in their biennial harassment training programs, effective January 1, 2015.
Under this law, “abusive conduct” is defined as hostile or offensive language or actions—such as threats, insults, humiliation, and intimidation. Abusers are malicious in intent, and may be undermining a person’s work or performance through repeat instances of verbal abuse.
California SB 396
Officially signed into law on October 15, 2017, lawmakers passed California SB 396 to include in workplace training programs the prevention of harassment related to gender identity, gender expression, and sexual orientation. In addition to training program modifications, this bill broadens the Fair Employment and Housing Act’s definition of an “individual with employment barriers” to include gender nonconforming and transgender individuals.
Additionally, employers must display a Department of Fair Employment and Housing (DFEH) informational poster describing transgender rights. These posters must be prominent and in easily-accessed areas of the workplace. Employers must also make available an information sheet that includes:
- Definition of sexual harassment
- Description and examples of sexual harassment
- Internal complaint process for employees
- Laws prohibiting sexual harassment
- Legal remedies and complaint process through the state
- State of California’s DFEH contact information
California SB 1343: A New Law That Requires You To Take Action
Much like AB 1825, California SB 1343 redefines the size of organizations and types of employees required to participate in sexual harassment prevention training. Written as an update to AB 1825, SB 1343 newly names employers with five or more employees as the minimum threshold for provisional workplace-training programs.
This law, passed on September 30th, 2018, calls for training for both supervisors and non-supervisors—including seasonal and temporary workers—at two hours and one hour of biennial training, respectively. Training should take place within six months of hire or 100 hours worked, and is to include guidelines set forth in California laws AB 1825, AB 2053, and SB 396. Businesses must have all non-supervisors and supervisors trained under the new SB 1343 elements by January 1, 2020. This training must:
- Be presented by subject matter experts with knowledge and expertise in those areas
- Be inclusive of harassment based on gender identity, gender expression, and sexual orientation as a component of the training and education specified in subdivision
- Covers seasonal, migrant, and temporary workers that have worked one day for the employer
- Include a section on preventing abusive conduct
- Include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation
If an organization does not adhere to these requirements the Department of Fair Employment and Housing may seek an order requiring the employer to comply with these requirements. Along with SB 1343, the state of California is in the process of passing additional mandates regarding employment discrimination and workplace harassment:
California AB 1870: This law would extend the statute of limitations for employees to three years after an incident for reporting employment discrimination and sexual harassment.
California SB 224: As an amendment to the Civil Code, SB 224 expands the definition of professional relationships through who can be held liable for harassment, aside from an employee’s employer. It also holds state government responsible for enforcing violations of harassment and discrimination in the workplace.
California SB 1300: This mandate clarifies what conduct is deemed severe enough to warrant legal ramifications. Prior to this bill, lawmakers relied on Brooks v. City of San Mateo for actionable harassment metrics, as it deemed one instance of non-severe workplace sexual harassment as not enough to warrant legal ramifications.
California AB 3080: Effectively doing away with mandatory arbitration agreements, AB 3080 releases an employee from having to sign a non-disparagement agreement. This type of contractual agreement typically prohibits employees from reporting illegal workplace activity, including sexual harassment.
What This Means For Your Business
To summarize, if your business in California has five or fewer employees, you must provide interactive sexual harassment prevention training to your employees biennially, beginning within 30 days of hire. Supervisors must have two hours of training, and non-supervisors require one. Under California law, this training must include sexual harassment and discrimination prevention, abusive conduct, domestic violence, gender-based discrimination, stalking, and retaliation. You must also provide posters and information sheets with pertinent laws, examples, and contact information for reporting.
Navigating California’s frequent updates can be challenging. Impact Compliance Training’s interactive online courses meet state requirements and are consistently updated with new laws. Courses are also customizable to suit supervisors, non-supervisors, and for your company’s brand and industry.
Sexual harassment covers a range of complaints such as harassment…