Sexual Harassment Prohibitions
Fair employment practices law: Employers and their agents or supervisors can't commit or allow sexual harassment. Employers also can't aid, abet, incite, compel, or coerce unlawful sexual harassment or try to do so.
There are two types of sexual harassment:
- Quid pro quo harassment occurs when a job or promotion is explicitly or implicitly conditioned on applicants' or employees' submission to sexual advances or other conduct based on sex.
- Hostile work environment harassment occurs when unwelcome comments or conduct based on sex unreasonably interfere with employees' work performance or create an intimidating, hostile, or offensive work environment. The harassment must be subjectively and objectively offensive and so severe or pervasive that it alters the conditions of employment and creates an abusive work environment. A single unwelcome act of harassment can be severe enough to create a hostile work environment.
Sexual harassment includes:
- verbal harassment such as epithets, derogatory comments, or slurs;
- physical harassment such as assault, impeding or blocking movement, or physical interference with normal work or movement;
- visual harassment such as derogatory posters, cartoons, or drawings; and
- unwanted sexual advances that condition employment benefits on sexual favors.
Employment benefits include hiring, employment, promotions, selection for training programs leading to employment or promotions, retention in employment or training programs, compensation, and the provision of a harassment-free workplace. They also include selection or training for or retention in unpaid internships or other limited-duration programs that provide unpaid work experience in apprenticeship training programs or other training programs leading to employment or promotions.
Loss of tangible employment benefits isn't necessary to establish that sexual harassment occurred. Sexually harassing conduct doesn't need to be motivated by sexual desire.
[Note: Cal. Civ. Code § 51.9 prohibits sexual harassment in the context of certain business, service, or professional relationships outside the workplace, whereas the fair employment practices law applies to workplace sexual harassment (Hughes v. Pair, 209 P.3d 963 (Cal. 2009)).]
Cal. Gov't Code § 12940
Cal. Code Regs. tit. 2, §§ 11019, 11034
Fair employment practices law: Employers must instruct supervisory and nonsupervisory employees on sexual harassment prevention by January 1, 2021 and once every two years thereafter.
[Note: The August 30, 2019, enactment of 2019 Cal. Stat. 215 (S.B. 778) extended the deadline for providing the required training to January 1, 2021. Previously the deadline was January 1, 2020, in accordance with 2018 Cal. Stat. 956 (S.B. 1343), effective January 1, 2019.]
Specifically, employers must provide at least two hours of classroom or other effective interactive training and education to all supervisory employees in California, and at least one hour of such instruction to all nonsupervisory employees in the state. New supervisory and nonsupervisory employees must receive instruction within six months after they assume a position. [Note: An employer that provided this instruction to an employee in 2019 isn't required to provide refresher training until two years thereafter.]
Supervisory employees are employees who are authorized to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or direct other employees, adjust their grievances, or recommend these actions. New supervisory employees are employees who have been hired or promoted to a supervisory position since employers last provided instruction on sexual harassment prevention.
Supervisors aren't subject to the training requirements if they complied within the past two years through their current employer or a prior, alternate, or joint employer and they received, read, and acknowledged receipt of their current employer's anti-harassment policy within six months after assuming a new supervisory position or within six months after the employer became subject to the requirements. Their current employer has the burden of establishing such prior compliance.
Effective September 28, 2020, employees who have received compliant training within the past two years from a current, previous, alternate or joint employer, or who receive a work permit from the Labor Commission that required them to receive compliant training within the past two years, must read and acknowledge receipt of the employer's anti-harassment policy within six months of assuming their new position. Employees must then be placed on a two year tracking schedule based on their last training. The current employer has the burden of establishing the prior training was compliant with the requirements.
Employers also must provide instruction on sexual harassment prevention to seasonal employees, temporary employees, and employees who are hired to work for less than six months. This instruction must be provided within 30 calendar days of hire or within 100 hours worked, whichever occurs first. If a temporary employee is employed by a temporary services employer (as defined in Cal. Lab. Code § 201.3) to perform services for clients, that employer(not the clients) must provide the instruction.
New businesses must provide instruction on sexual harassment prevention within six months after they are established and once every two years thereafter. Established businesses that become subject to the training requirements must provide this instruction within six months after the requirements apply to them and once every two years thereafter.
To track the frequency of training, employers can use either or both of the following methods:
- Individual basis: Employers can track training on an individual basis by measuring two years from the date each supervisor last completed training.
- Training-year basis: Employers can designate a training year in which they train some or all of their supervisors. These supervisors must be retrained by the end of the subsequent training year, which is two years later. If new supervisors receive initial training in a nontraining year, they can be retrained in the next training year and every training year thereafter.
Employers aren't liable to current or former employees and applicants, in any lawsuit alleging sexual harassment, solely based on a claim that they didn't receive the required instruction on sexual harassment prevention. Likewise, employers' compliance with the training requirements doesn't protect them from liability for sexual harassment.
Employers can provide sexual harassment prevention training in conjunction with other training provided to employees. Employees can complete this training individually or as part of a group presentation, and they can complete it in segments if the total time requirement is met. Employers can develop their own training courses or direct employees to online training courses provided by the California Department of Fair Employment and Housing. The department provides these courses on its website in English and various other languages. Employees who complete the required training can obtain a certificate of completion from the department.
Effective interactive training includes any of the following:
- Classroom training, which is in-person instruction provided by a qualified trainer (see trainer requirements below) who creates the content and provides it to supervisors in a setting removed from their daily duties.
- E-learning training, which is individualized, interactive, computer-based training created by a qualified trainer (see trainer requirements below) and an instructional designer. Instructional designers develop training content based on trainer-provided material and their own expertise in current instructional best practices. This training must provide a link or directions on how to contact the trainer with questions and provide guidance and assistance within two business days after questions are asked.
- Webinar training, which is an internet-based seminar with content that is created and taught by a qualified trainer (see trainer requirements below) and transmitted over the internet or intranet in real time. This webinar must provide an opportunity to ask questions, have them answered, and otherwise seek guidance and assistance.
Employers can use audio, video, or computer technology or other tools in conjunction with classroom, e-learning, or webinar training; however, these tools are supplemental only and don't meet the training requirements by themselves. For any of the above training methods, instruction must include questions that assess learning; skill-building activities that assess the application and understanding of content; and numerous hypothetical scenarios about harassment, each with one or more discussion questions. Training doesn't need to be completed in two consecutive hours, but classroom or webinar training segments must be at least half an hour. E-learning training can use bookmarks that allow participants to pause their training session.
California requires training on sexual harassment prevention to:
- help employers change workplace behavior that causes or contributes to unlawful sexual harassment, and harassment based on gender identity, gender expression, and sexual orientation;
- help supervisors prevent, respond to, address, and correct this behavior; and
- inform supervisors about the negative impact of abusive conduct at the workplace(see “abusive conduct” below).
To meet these objectives, such training must at least cover:
- a definition of unlawful sexual harassment, and harassment based on gender identity, gender expression, and sexual orientation under California's Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
- FEHA and Title VII statutory provisions and case law principles regarding the prohibition, prevention, and correction of unlawful harassment, discrimination and retaliation;
- the types of conduct that constitute harassment;
- available remedies for harassment victims in lawsuits and potential liability for employers and individuals;
- strategies for preventing harassment at the workplace;
- supervisors' obligation to report harassment, discrimination, and retaliation when they become aware of it;
- practical examples of harassment, discrimination, and retaliation through training modalities such as role play, case studies, and group discussion;
- the limited confidentiality of the complaint process;
- resources for harassment victims (for example, instructions on how to report alleged harassment);
- appropriate remedies for correcting harassing behavior, including employers' obligation to effectively investigate complaints;
- what to do if supervisors are accused of harassment;
- the essential elements of an anti-harassment policy and how to apply it if complaints are filed; and
- the definition of “abusive conduct” (see below).
Abusive conduct: Training on sexual harassment prevention also must address the prevention of abusive conduct in a meaningful way. Specifically, this training should:
- explain the negative impact of abusive conduct on the victims of such conduct, other people at the workplace, and employers;
- discuss the elements of abusive conduct (including the definition below);and
- emphasize that a single act doesn't constitute abusive conduct, unless it is especially severe or egregious.
Abusive conduct is malicious conduct by employers or employees at the workplace if this behavior isn't related to employers' legitimate business interests and would be hostile or offensive to a reasonable person. It can include repeated verbal abuse such as derogatory remarks, insults, or epithets; verbal or physical conduct that would be threatening, intimidating, or humiliating to a reasonable person; and the gratuitous sabotage or undermining of employees' work performance.
Bystander intervention: Training on sexual harassment prevention can, but isn't required to, include training on bystander intervention. This training can provide information and practical guidance that enables bystanders to recognize potentially problematic behaviors and motivates them to take action when they observe these behaviors. The training also can provide exercises that give bystanders the skills and confidence to intervene as appropriate and resources they can rely on to support their intervention.
Sexual orientation and gender identity or expression: Training on sexual harassment prevention also must address harassment based on sexual orientation and gender identity or expression and provide practical examples of this harassment.
Trainers and educators are qualified to provide required instruction on sexual harassment prevention if they have a combination of training, experience, knowledge, and expertise that enables them to train supervisors on:
- the definitions of abusive conduct, sexual harassment, gender identity, gender expression, and sexual orientation;
- identifying behavior that might constitute unlawful harassment, discrimination, or retaliation under California and federal laws;
- steps they can take when harassing behavior occurs at the workplace;
- how to report and respond to harassment complaints;
- their obligation to report harassing, discriminatory, or retaliatory behavior when they become aware of it;
- employers'obligation to investigate harassment complaints;
- what constitutes retaliation and how to prevent it;
- the essential components of an anti-harassment policy;
- the impact of harassment on harassed employees, co-workers, harassers, and employers; and
- practical examples in the prevention of harassment, discrimination, and retaliation based on sex, gender identity, gender expression, sexual orientation, and the prevention of abusive conduct.
Trainers must be:
- attorneys who have been admitted for at least two years to any U.S. state bar and whose practice includes employment law under California's Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964;
- HR professionals, harassment prevention consultants, or, peer-to-peer trainers with at least two years of practical experience in designing or conducting discrimination, retaliation, and harassment prevention training; responding to harassment or discrimination complaints; investigating harassment complaints; or advising employers or employees on discrimination, retaliation, and harassment prevention; or
- professors or instructors who teach at a law school, college, or university, have a post-graduate degree or California teaching credential; and have 20 instruction hours or at least two years of experience at a law school, college or university teaching about California's Fair Employment and Housing Act or Title VII of the federal Civil Rights Act of 1964.
Trainers who lack the required amount of experience, but are otherwise qualified, can team teach with a qualified trainer in classroom or webinar trainings if that person supervises them and is available during these trainings to answer questions from participants.
Sexual orientation and gender identity or expression: Training that addresses harassment based on sexual orientation and gender identity or expression must be presented by trainers or educators with relevant knowledge and expertise.
Cal. Gov't Code §§ 12926, 12950 to 12950.2 (2020 Cal. Stat. 227 (A.B. 3369))
Cal. Code Regs. tit. 2, § 11024