The new sexual harassment law, SB-1343 brings sexual harassment training to more workplaces.
The previous rule required sexual harassment training only for larger employers, with 50 or more employees, but it was finally recognized that a sizable portion of California’s workforce is concentrated in smaller businesses. The new rule requires anyone who employs five or more people to provide sexual harassment training to their staff, which makes it the duty of most employers by law.
The statute requires two hours of sexual harassment training to employees who supervise others and one hour of sexual harassment training to non-supervisory employees by the beginning of 2020.
It’s meant to spread awareness of the obligations of companies not to permit or condone sexual harassment in the workplace, and to inform potential victims of their rights.
The training is useful to educate people who, for whatever reason, are not aware of their obligation to refrain from engaging in inappropriate conduct. Most people understand that if you condition the victim’s right to continue employment on submitting to sexual advances or dating relationships, that’s pretty clearly wrong on many levels, and illegal.
However, some people may not know that. They may view themselves as simply engaging in behavior that may be appropriate outside the workplace, but not at work. For example, if you have a group of men in a private home during non-work hours talking about sexual matters or movies, or their attraction to certain celebrities, it might not be great behavior, but it is not illegal if it’s purely consensual and not in the workplace.
Whereas in the workplace, if you are having that same conversation with a fellow employee, it could be that you’re speaking loud enough for other people to hear it and they may have different sensibilities.
The new required sexual harassment training hopefully achieves the purpose of sensitizing people to the fact that your personal sensibilities are not always shared universally, and that you have to be respectful of other people’s rights.
Q: What happens if the employer fails to have sexual harassment training by January 1, 2020?
It would generally be a bad fact for the employer in ensuing employment litigation. Employers have a duty under the law to prevent sexual harassment by, among other things, have appropriate sexual harassment training. If the company is subject to this rule and blatantly doesn’t do it, there’s compelling evidence that the employer doesn’t take its obligations under the law seriously.
To prove liability, you have to prove that you were harassed. For example, even if the company didn’t do the required training, or didn’t have the right policies, if the employer can still demonstrate that the claim of harassment is not sufficient to recover, even if they failed to have the right training and policies and handbooks, it would still be the case that the employee cannot recover. In effect, it’s conditioned upon a finding of proving the underlying violation.
One of the things that’s most helpful about the new training requirement is it makes it very clear that the context is really important. If you can show that an employer has been trained, and its managers haven’t disseminated the right policies and not provided a mechanism for people to complain, then you’ve got a good argument that it is an environment that tolerates or condones harassment. It has its implications, but one of the difficulties with the law is that there is an independent liability for failure to prevent.
Q: If my employer doesn’t comply by January 1, 2020, and I bring it to the attention of the governmental body that enforces this rule, would that be a whistle-blower case?
If the report of non-compliance, either internally to the company or externally to a governmental entity, triggers retaliatory termination (or other adverse action), then yes, the whistleblower would have a claim against the employer.
Retaliation claims are often some of the most provable types of employment discrimination claims because most people understand it intuitively without a lot of lawyer persuasion: If you complain about your boss, it shouldn’t result in a negative pushback from the employer, termination, demotion or denial of some privilege of employment.
If the employer changes the person’s terms and conditions of employment, such as demotion or suspension, it could give rise to employer liability. For example, even if they don’t change an employee’s salary, they may transfer the victim to a position that doesn’t have the same opportunities for advancement. California case law makes clear that this behavior is actionable as well.