Sexual Harassment Discrimination and Training

                                                                   Sexual Harassment Discrimination Overview

On June 30, 2022, Governor Newsom signed SB 189 which, effective July 1, 2022, changed the name of the department previously known as the Department of Fair Employment and Housing to the Civil Rights Department (CRD). In addition, SB 189 changed the name of the Fair Employment and Housing Council to the Civil Rights Council (CRC).

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In accordance with its statutory mandate to “eliminate discrimination” in California, CRD receives, investigates, conciliates, mediates, and prosecutes complaints of alleged violations of numerous civil rights laws, including the Fair Employment and Housing Act (FEHA) (Gov. Code § 12900 et seq.).

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Sexual harassment is a form of discrimination based on sex/gender (including pregnancy, childbirth, or related medical conditions), gender identity, gender expression, or sexual orientation. Individuals of any gender can be the target of sexual harassment.

Unlawful sexual harassment does not have to be motivated by sexual desire. Sexual harassment may involve harassment of a person of the same gender as the harasser, regardless of either person’s sexual orientation or gender identity.

THERE ARE TWO TYPES OF SEXUAL HARASSMENT

1. “Quid pro quo” (Latin for “this for that”) sexual harassment is when someone conditions a job, promotion, or other work benefit on your submission to sexual advances or other conduct based on sex.

2. “Hostile work environment” sexual harassment occurs when unwelcome comments or conduct based on sex unreasonably interferes with your work performance or creates an intimidating, hostile, or offensive work environment.

You may experience sexual harassment even if the offensive conduct was not aimed directly at you. The harassment must be severe or pervasive to be unlawful. A single act of harassment may be sufficiently severe to be unlawful.

SEXUAL HARASSMENT INCLUDES MANY FORMS OF OFFENSIVE BEHAVIORS BEHAVIORS THAT MAY BE SEXUAL HARASSMENT:

1. Unwanted sexual advances

2. Offering employment benefits in exchange for sexual favors

3. Leering; gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters

4. Derogatory comments, epithets, slurs, or jokes

5. Graphic comments, sexually degrading words, or suggestive or obscene messages or invitations

6. Physical touching or assault, as well as impeding or blocking movements

Actual or threatened retaliation for rejecting advances or complaining about harassment is also unlawful.

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                                                                                                    Common FAQ:

Q: What can an individual do if they believe they have been sexually harassed in the workplace?

A:  Employees or job applicants who believe that they have been sexually harassed or retaliated against may file a complaint of discrimination with the Civil Rights Department (CRD) within three years of the last act of harassment or retaliation. CFD serves as a neutral fact-finder and attempts to help the parties voluntarily resolve disputes.

If CRD finds sufficient evidence to establish that discrimination occurred and settlement efforts fail, it may file a civil complaint in state or federal court to address the causes of the discrimination and on behalf of the complaining party. CRD may seek court orders changing the employer’s policies and practices, punitive damages, and attorney’s fees and costs if it prevails in litigation.

Employees can also pursue the matter through a private lawsuit in civil court after a complaint has been filed with CRD and a Right-to-Sue Notice has been issued.

Q:  Are all California employers covered by the sexual harassment laws?

A: Yes. All employers, regardless of the number of employees, are covered by the harassment provisions of California law. Employers are liable for harassment by their supervisors or agents. All harassers, including both supervisory and non-supervisory personnel, may be held personally liable for harassment or for aiding and abetting harassment.

Q:  What must California employers do to prevent sexual harassment?

A:  The law requires employers to take reasonable steps to prevent harassment. If an employer fails to take such steps, that employer can be held liable for the harassment. In addition, an employer may be liable for the harassment by a non-employee (for example, a client or customer) of an employee, applicant, or person providing services for the employer. An employer will only be liable for this form of harassment if it knew or should have known of the harassment, and failed to take immediate and appropriate corrective action.

Employers have an affirmative duty to take reasonable steps to prevent and promptly correct discriminatory and harassing conduct, and to create a workplace free of harassment. A program to eliminate sexual harassment from the workplace is not only required by law, but it is the most practical way for an employer to avoid or limit liability if harassment occurs.

All employers must take the following actions to prevent harassment and to correct it when it occurs:

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1. Distribute copies of a brochure from the DFEH or an alternative writing that complies with the law.

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2. Post a copy of CRD’s employment poster entitled “California Law Prohibits Workplace Discrimination and Harassment.”

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3. Develop a harassment, discrimination, and retaliation prevention policy in accordance with the law. The policy must:

• Be in writing. • List all protected groups under the FEHA.

• Indicate that the law prohibits coworkers and third parties, as well as supervisors and managers with whom the employee comes into contact, from engaging in prohibited harassment.

• Create a complaint process that ensures confidentiality to the extent possible; a timely response; an impartial and timely investigation by qualified personnel; documentation and tracking for reason able progress; appropriate options for remedial actions and resolutions; and timely closures.

• Provide a complaint mechanism that does not require an employee to complain directly to their immediate supervisor. That complaint mechanism must include, but is not limited to including: provisions for direct communication, either orally or in writing, with a designated company representative; and/or a complaint hotline; and/or access to an ombudsperson; and/or identification of CRD and the United States Equal Employment Opportunity Commission as additional avenues for employees to lodge complaints.

• Instruct supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so that the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training.

• Indicate that when the employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.

• Make clear that employees shall not be retaliated against as a result of making a complaint or participating in an investigation.

​4. Distribute its harassment, discrimination, and retaliation prevention policy by doing one or more of the following:

• Printing the policy and providing a copy to employees with an acknowledgement form for employees to sign and return.

• Sending the policy via email with an acknowledgment return form.

• Posting the current version of the policy on a company intranet with a tracking system to ensure all employees have read and acknowledged receipt of the policy. • Discussing policies upon hire and/or during a new hire orientation session.

• Using any other method that ensures employees received and understand the policy.

5. If the employer’s workforce at any facility or establishment contains ten percent or more of persons who speak a language other than English as their spoken language, that employer shall translate the harassment, discrimination, and retaliation policy into every language spoken by at least ten percent of the workforce.

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6. In addition, employers who do business in California and employ 5 or more part-time or full-time employees must provide at least one hour of training regarding the prevention of sexual harassment, including harassment based on gender identity, gender expression, and sexual orientation, to each non-supervisory employee; and two hours of such training to each supervisory employee. Training must be provided within six months of assumption of employment. Employees must be trained during calendar year 2020, and, after January 1, 2021, training must be provided again every two years.

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Employers of 5 or more employees are required to provide sexual harassment training to supervisory and nonsupervisory employees, and CRD accepts complaints when a person believes that an employer has not complied with these training and education requirements.

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Q:  What are the legal remedies for individuals who have been sexually harassed?

A:  Remedies include:

• Damages for emotional distress from each employer or person in violation of the law

• Hiring or reinstatement

• Back pay or promotion

• Changes in the policies or practices of the employer

Q: Can a California Employer terminate, suspend, demote, or take any other punitive action against an employee who files a sexual harassment claim against a co-worker, boss or the employer?
A: No. Many employees in California who are sexually harassed at work are afraid to report it for fear of being fired, demoted or given other adverse treatment. It is unlawful for any employer to retaliate against an employee for reporting sexual harassment and other workplace violations.

                                                                                   Sexual Harassment Training Overview

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California law requires all employers of 5 or more employees to provide training to its supervisory and nonsupervisory employees on sexual harassment and abusive conduct prevention. Every 2 years, nonsupervisory employees must receive at least 1 hour of training and supervisory employees must receive at least 2 hours of training.

The training may be completed all at once or in segments, as long as the applicable hourly total requirement is met. The law requires the training to include practical examples of harassment based on gender identity, gender expression, and sexual orientation.

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An employer is required to train its California-based employees so long as it employs 5 or more employees anywhere, even if they do not work at the same location and even if not all of them work or reside in California.

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The CRD provides free online training courses on preventing sexual harassment and abusive conduct in the workplace that satisfy California’s legal training requirements.

 If you have any further questions about sexual harassment or need additional information, please contact me for a FREE confidential consultation at (916) 333-4653 or Stephen_Fiegel_Esq@comcast.net.