#57481: Sexual Harassment Prevention: The California Law

Sexual harassment in the workplace is a longstanding issue. Discrimination based on sex was first addressed legally in 1964, with Title VII of the Civil Rights Act, which prohibited employment discrimination based on race, color, religion, sex, and national origin[1]. In 1975, the term "sexual harassment" was first used to describe unwanted sexual advances in the workplace [2]. While originally the term "sex" in Title VII was largely interpreted as protection for women and pregnancy in the workplace, in 1998, the Supreme Court determined that the definition included any sex regardless of the victim's or harasser's sex. Throughout the following decades, the topic of sexual harassment has been revisited, most recently reignited by the 2017 #MeToo movement, which aimed to bring awareness about the widespread scope of sexual harassment and abuse perpetrated in the workplace [1,2].

Additional legislation has been enacted to prevent sexual harassment and protect victims of sexual harassment. In 2019, California Senate Bill 1343 was signed, requiring businesses with more than five employees to provide harassment prevention training within six months of the hire date. Seasonal, temporary, or other employees hired to work less than six months must be trained within 30 calendar days after hire or within 100 hours worked, whichever is earlier. Employees are required one hour of harassment prevention training and supervisors and managers are required two hours of training every two years [3].

The purpose of this course is to provide information on what constitutes sexual harassment, how to prevent it in the workplace, and to define the roles and responsibilities of creating a safe work environment as it applies to both supervisors and employees. Throughout this course, examples will be provided to enhance understanding of concepts.

In order to address and prevent sexual harassment, it is essential for employees and supervisors to understand various definitions that fall under the term harassment. The following terms are defined according to California law.

Harassment: Any "unwelcome conduct that is based on race, color, religion, sex, national origin, age, disability, or genetic information" [4]. The California Civil Rights Department (CRD) (previously the Department of Fair Employment and Housing or DFEH) indicates that employees are protected from illegal discrimination and harassment based on their actual or perceived: ancestry; age; color; disability; genetic information; gender identity; gender expression; marital status; medical condition; military or veteran status; national origin; race; religion; sex/gender; and sexual orientation. While harassment is not necessarily illegal, it can become unlawful when the offensive conduct creates a work environment that is considered intimidating, hostile, or abusive, or when enduring that conduct becomes a condition of employment [4].

Discrimination: The differential treatment of an individual or group of people based on their race, color, national origin, religion, sex (including pregnancy and gender identity), age, marital and parental status, disability, sexual orientation, or genetic information [4].

Sexual harassment: Includes unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature or based on the victim's sex. It is important to note that sexual harassment does not have to be sexual in nature and can include offensive remarks, spreading rumors, sabotaging work assignments, vandalizing personal belongings, or anything that constitutes harassment based on a person's sex, sexual orientation, or pregnancy/parental status. Sexual harassment may be perpetrated by a woman or a man, and the victim does not have to be of the opposite sex. In addition, the victim does not have to be the person harassed but could be anyone vicarious affected by the offensive conduct. Like harassment, it becomes unlawful when the frequency or severity creates a hostile or offensive work environment, or when it affects a victim's employment [5,7].

Example : Nurse Practitioner L is a gay man, 36 years of age. Since graduating and beginning his new job almost four months ago, he has been teased by two of his female co-workers. While it was light teasing in the beginning, it has now come to the point where most communication involves comments and suggestive remarks about his sexual orientation. The number of individuals now making similar comments has grown, and L feels self-conscious and hurt by the continual teasing.

Discussion : Although L is not being directly propositioned by his co-workers, he is still experiencing sexual harassment, as well as discrimination. In this case, any of the individuals witnessing or participating should have reported the behavior.

Quid pro quo harassment: A type of harassment in which a person in position of authority or power implies or expressly demands something from the victim in exchange for a benefit (e.g., promotion) or to avoid a punishment (e.g., termination) in the workplace. Quid pro quo is Latin for "something for something" [7].

Example : Nurse C is applying for a promotion within her hospital. A member from the interview panel, Mr. R, asks her to go to dinner with him to discuss job details. Nurse C asks if the meeting would include other members from the panel and is told that it would just be the two of them and he would help prepare her for some of the questions. Nurse C feels uncomfortable and asks if it can be scheduled at work, to which Mr. R replies that he is quite busy during the day. A few days before the interview, Mr. R again asks Nurse C if she is available for dinner, and she again declines. Later in the day, Nurse C is told that Mr. R was speaking to another member of the interview panel and suggested that Nurse C may not be the most qualified for the position. Nurse C decides to notify her human resources representative and request that an alternate hiring member be appointed. This request is approved based on the facts that Mr. R asked for a private meeting twice and declined an alternate and neutral location.

Discussion : While not necessarily illegal, this situation made Nurse C uncomfortable and left her wondering if her rejection of dinner plans upset Mr. R and hurt her chances of getting the promotion. Because Mr. R was in a position of authority, it was determined that there was potential for bias and quid pro quo harassment. Mr. R was counseled that the actions were inappropriate, and Nurse C no longer felt pressured that her decisions put her interview in jeopardy.

Hostile work environment harassment: A type of harassment in which behaviors or actions of others negatively affect an employee's work environment and/or job performance. Hostile work environment harassment can be committed by anyone in the work environment, including supervisors, peers, subordinates, vendors, customers, or contractors [7].

Retaliation: The act of punishing job applicants or employees for asserting their rights to be free from employment discrimination, including harassment. It is unlawful to retaliate for filing or being a witness to a complaint; reporting discrimination or harassment to a supervisor or manager; and/or resisting sexual advances or intervening to protect others. Participating in a complaint process is protected from retaliation under all circumstances. Retaliation can include loss of employment, demotions, economic abuse, verbal and/or physical abuse, threats, and creating a work environment that places undue stress on an employee, such as schedule changes or denying personnel assistance or job-related equipment [6].

Example : Mr. and Mrs. H are husband and wife, both nurses, and have two school-aged children and a toddler at home. Mrs. H works night shift in the emergency department (ED), and Mr. H works day shift in an orthopedic clinic, allowing them to be present for their children and their varying schedules. Mrs. H has recently come forward to report a male peer, Nurse A, making sexually inappropriate comments to a co-worker about the women he sees in the ED. She has witnessed this several times per week over the course of nearly one year. Mrs. H hesitated to tell her supervisor because Supervisor B is good friends with Nurse A outside of work. The Supervisor agrees to begin an investigation, but after two weeks, Mrs. H is moved to the day shift as an attempt to separate the two nurses. Mrs. H objects to the change in schedule because it will cause a hardship on her parenting schedule; however, Supervisor B tells her that Nurse A has been with the department longer and this is the best solution to prevent conflict.

Discussion : Because reporting that her colleague's behavior negatively affected the work environment resulted in her then removed from a schedule that was beneficial to her family, these actions created a hostile work environment and constitute retaliation. Mrs. H does not have to be the direct subject of the harassment to receive protection.

In 2018, one year before the passage of SB 1343 mandating sexual harassment training in California workplaces, the Pew Research Center conducted a study to determine the prevalence of sexual harassment in the workplace and how the #MeToo movement affected thoughts regarding the topic. Data from the study indicated that 44% of individuals in the United States had received unwanted sexual advances or verbal or physical harassment of a sexual nature. Among women, 59% had experienced sexual harassment, and 69% of these incidents were in a professional or workplace setting. Among men, 27% had experienced sexual harassment, and 61% of these incidents were in a professional workplace setting [8].

In 2022, five years after the #MeToo movement gained traction, the Pew Research Center found that 70% of adults believe people who commit harassment or assault at work are now more likely to be held responsible than in 2017 [9]. Although public perception of accountability among perpetrators is positive, data from the Equal Opportunity Employer indicate that receipt of sexual harassment charges has not significantly declined since 2010. In fact, between 2017 and 2023, the rate of sexual harassment charges increased by more than 14% [13]. Additional research is needed to ascertain the effects of this renewed social attention and new legislation addressing the subject.

In a 2022 survey of the gender and sexual minority (LGBTQ+) community, more than 50% of individuals (including 70% of transgender respondents) indicated being sexually harassed in the workplace, a percentage larger than that of the general public. Among those who had experienced harassment, 25% reported experiencing sexual harassment, such as unwanted sexual attention; sexual coercion; or crude, offensive, or hostile behaviors. In addition, 22% of respondents reported being fired or not hired, and 21% reported being denied a promotion, wages, equal wages, or training opportunities because of their sexual orientation, gender identity, or intersex status [10].

Every workplace is lawfully required to take reasonable steps to prevent and correct discrimination and harassment and create a respectful work environment. All supervisors and employees should be required to sign an acknowledgement of the policies and procedures and receive ongoing reminders and training [5,12].

Often, a human resource representative will provide the required information for supervisors and employees; however, it is the responsibility of all employees to understand these requirements and ensure that the requirements are being adhered to. Mandates from the CRD indicate that the following items must be provided for employees [12]:

Employers should distribute their harassment, discrimination, and retaliation prevention policy by doing one or more of the following:

If the employer's workforce at any facility or establishment contains 10% or more of persons who speak a language other than English as their preferred language, that employer shall translate the harassment, discrimination, and retaliation policy into every language spoken by at least 10% of the workforce [12].

As noted, employers who do business in California and employ five 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. New supervisory employees must be trained within six months of assuming their supervisory position, and new non-supervisory employees must be trained within six months of hire. Employees hired to work less than six months must be trained within 30 calendar days after hire or within 100 hours worked, whichever is earlier. Employees must be retrained at least once every two years [3,12].

All supervisors and employees have an obligation to promote a safe work environment and can be held personally liable if this expectation is not upheld. If a behavior is reported, regardless of whether the individual is the target of the harassment, it is necessary to determine if a hostile work environment and/or harassment is occurring. A hostile work environment occurs when undesirable or unwanted conduct interferes with an individual's job performance or creates an intimidating, hostile, or offensive workplace. It is important to note that the source of a hostile work environment does not have to be an employee; the source could also be a vendor, customer, or contractor.

Preventing harassment is best accomplished by a very clear policy that promotes intolerance to any type of discrimination. As discussed, ways to prevent harassment can be accomplished through:

In the multicultural landscape of the United States today, it is possible that not all employees define harassment in the same way, and not all employees and/or witnesses will be able to describe harassment. In these cases, interpreters are a valuable resource to help bridge communication and cultural gaps. If any party has limited English proficiency, an interpreter (live or over the phone) should be accessed in conjunction with a supervisor or human resource individual. Due to the sensitive nature of the interviews, some employees may be embarrassed to discuss the matter with a third party. Even if an interpreter is initially declined, continue to assess the necessity of interpretation assistance. Family members are not considered appropriate interpreters.

As noted previously, any workplace containing 10% or more of persons who speak a language other than English as their spoken language must translate the harassment, discrimination, and retaliation policy into that language. It is also required that posters and informational materials should be available in different languages [12].

As noted, sexual harassment in the workplace is a longstanding issue that has received renewed attention and legislation to help make the workplace safe for all. California Senate Bill 1343 was signed in 2019, requiring businesses with more than five employees to provide harassment prevention training with the goal of significantly decreasing sexual harassment in the workplace.

This course meets the California requirement of sexual harassment training of one hour for employees and two hours for supervisors that must be completed every two years. Throughout this course, information regarding what constitutes sexual harassment, how to prevent it in the workplace, employer responsibilities, employee and supervisor roles and responsibilities, and multicultural considerations have been provided. Scenarios that pertain to multiple situations have also been addressed to further understanding of what may or may not constitute sexual harassment. A safe work environment is the right of every individual.