The movement against sexual harassment has gained viral visibility in today’s “#MeToo” era. In a 2018 study on sexual harassment and assault, an alarming 81% of women and 43% of men reported experiencing some type of sexual harassment in their lifetime.
A separate study conducted a few months later found that over a quarter of women and 14% of men reported experiencing such harassment in their place of work.
For the workplace, the Equal Employment Opportunity Commission (“EEOC”) reported in 2016 that greatest impact that either prevents harassment or permits it to “flourish” lies in the culture of the workplace itself. Both leadership and accountability are paramount to ensuring that employers create a workplace culture that does not tolerate harassment.
In response to findings such as these, the California legislature has enacted two pieces of legislation which addresses the need for employers to take action in preventing sexual harassment at work.
Senate Bill 1343 (“SB 1343”) has effectively expanded California employer’s sexual harassment prevention training (“Training”) requirements.
Per SB 1343, as of January 1, 2019, employers with five or more employees must provide mandatory interactive sexual harassment training to all of its employees –not just supervisory employees.
Effective IMMEDIATELY, on August 30, 2019, Governor Gavin Newsom signed Senate Bill 778, which updated Section 12950.1 the CA Government Code to extend SB 1343’s original Training deadline from January 1, 2020 to January 1, 2021.
Since the “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers” published last November by the Department of Fair Employment and Housing (“DFEH”) failed to define the Training requirements for non-supervisory employees, SSB 778’s update to SB 1343 essentially affords the DFEH more time to (a) provide harassment-training online resources to employers and (b) clarify what exactly the Training requirements are for non-supervisory employees.
Some of the new Training requirements include:
Supervisor or Agent Harassment. Employers should note that California’s requirements are far more stringent than federal regulations. For example –in addition to the personal liability of the Harasser, under CA Government Code Section 12940(j)(1), employers are strictly liable for illegal harassment perpetrated by either its agents or supervisors.
The California Supreme Court has previously confirmed employer’s strict liability in State Department of Health Services v. McGinnis (2003)(“McGinnis Decision”) reasoning that employers are “the first line of defense of sexual harassment in the workplace.”
By comparison, under federal law, an employer has an “affirmative defense” to escape liability entirely “if the harasser was the victim’s supervisor, and the harassment was actionable but did not culminate in a tangible employment action.”
For deeper discussion of legal issues in relation to Title VII, see the April 9, 2018 Congressional Research Service report “Sexual Harassment and Title VII: Selected Legal Issues” available at: https://fas.org/sgp/crs/misc/R45155.pdf
While strict liability means that California employers cannot completely avoid liability, in the McGinnis Decision, the CA Supreme Court nevertheless permits employers to plead the defense of “avoidable consequences.”
Under the avoidable consequences defense, employers can reduce the amount of damages they will have to pay to the victim if the employer is able to establish that:
“(1) the employer took reasonable steps to prevent and correct workplace sexual harassment;
(2) the employee unreasonably failed to use the preventive and corrective measures that the employer provided; and
(3) reasonable use of the employer's procedures would have prevented at least some of the harm that the employee suffered.” (emphasis added)
The three elements of the avoidable consequences defense listed above demonstrate the importance of having a Training program in place. Effective Training programs are essential –and not just for an employer to limit its liability in the event of a harassment suit! Training programs are essential to helping employers avoid such suits altogether by making it clear to to all that their workplace does not tolerate any form of harassment and that the company has measures in place for victims to seek recourse.
Non-Supervisor Harassment. Employers should note that strict liability is only imposed when the alleged perpetrator is a company supervisor. Instead, in order for an employer to be vicariously liable to an alleged victim of illegal harassment which is perpetrated by a non-supervisor employee (e.g. harassment by a fellow employee, intern, or volunteer) it must be shown that the employer both (1) “knows or should have known of this conduct” and (2) “fails to take immediate and appropriate corrective action” (Cal. Gov. Code Section 12940(j)(1)).
In its aforementioned task report, the EEOC commented that, unfortunately, over the past few decades, companies have focused their anti-harassment training on avoiding legal liability as opposed to creating a workplace culture in which harassment is not tolerated and harassers are held accountable.
Although the legislation is mandatory, employers should view the new Training requirements as a positive opportunity to cultivate a work-culture that prevents not only sexual harassment, but all of its forms to create a healthy, and consequently, productive work environment!
Should your business have questions about how to properly comply with California’s Training requirements, we strongly recommend you contact the Law Offices of Cecilia Chen or your employment attorney.
To access a Sexual Harassment Prevention Training Webinar created by the DFEH, click the link or download the powerpoint at:
Stay tuned for additional information!
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