Month: December 2022

Sexual harassment in the California workplace is a form of sexual discrimination which violates California’s Fair Employment and Housing Act and Title VII of the Civil Rights Act of 1964. Sexual harassment includes any unwelcome sexual advances, whether they be physical, visual, or verbal. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex. Essentially, sexual harassment is either considered a “quid pro quo” (pressuring an employee to engage in sexual activity for some type of employment benefit) or a “hostile work environment” (harassment so severe or pervasive that it alters the terms of an employee’s work environment).

While there is greater awareness of sexual harassment than in the past, people are still unfortunately subject to it on a daily basis. As a result, California made sexual harassment and abusive conduct prevention training a legal requirement for most employers to help remind people what behavior is considered unacceptable in the workplace. The ultimate goal of this training is to provide education that will result in the reduction and prevention of sexual harassment in the California workplace.

Understanding California Sexual Harassment Prevention Training

Who is required to take Sexual Harassment Training in California?

Sexual harassment prevention training is required for all private California employers with 5 or more employees (and all public agencies regardless of size). When determining the number of employees, this includes all employees in a company, not just those working in the same location, and not just those working in the state of California. While employees outside California count towards the “5 or more employees” requirement, they are not required to take the training. Training is required for both supervisory and nonsupervisory employees. If an individual is an employee that provides the training for their employer, they do not need to attend separate training for their employer to be in compliance.

How Often is Sexual Harassment Training Required in California?

For employers that are required to provide sexual harassment prevention training in California, it must be attended by their employees every two years. Nonsupervisory employees are only required to have one hour of training while supervisory employees are required to have at least two hours of training. The training may be completed in multiple segments or all at once. However, the training may not be required during an employee’s personal time and must be a part of the individual’s employment.

New employees must be trained within 6 months from when they were hired. However, if they received training within the past 2 years from another employer (current or prior), they are not required to retake the training until they would normally be due. As proof that employers have complied with this requirement, they must retain records of all employees’ training for at least 2 years.

What Must be Included in a California Sexual Harassment Prevention Training?

A sexual harassment training in California should include practical guidance on federal and state laws involving sexual harassment. It should provide information on what these laws are designed to prohibit and prevent. The training should also detail how these laws attempt to correct sexual harassment and the remedies that are available to any victims.

It’s also recommended to include an understanding of what is considered sexual harassment with real-life examples of harassment and discrimination based on sexual orientation, gender identity, and gender expression. Finally, the training should provide practical information on how to prevent this type of abusive conduct.

In addition to the training, employers are required to provide their employees with either a fact sheet or a poster regarding sexual harassment. State law requires that it contains the following minimum components:

• The illegality of sexual harassment;
• The definition of sexual harassment under applicable state and federal law;
• A description of sexual harassment, using examples;
• The internal complaint process of the employer available to the employee;
• The legal remedies and complaint process available through the department;
• Directions on how to contact the department;
• The protection against retaliation for opposing any prohibited act of sexual harassment, filing a complaint, or participating in an investigation, proceeding, or hearing by the DFEH; and
• A link or website address for the sexual harassment online training courses developed to comply with California state law.

Who Can Give Sexual Harassment Training in California?

This training must be provided by a qualified trainer. This includes the following:

• Attorneys – must be admitted to practice in any jurisdiction in the United States for at least 2 years and have employment law experience related to Title VII of the Civil Rights Act of 1964 or the FEHA.
• Professors or Instructors – must have either a postgraduate degree or a California teaching credential and either 2 years’ experience teaching employment law under FEHA or Title VII or 20 hours of instruction.
• HR Professionals and Harassment Prevention Consultants – must have a minimum of 2 years of practical and relevant experience.

Training can be provided online, live, or in any other effective format. This includes traditional classroom training, E-learning, and webinars. The training must have questions that assess the trainees learning as well as a way in which the attendees can obtain answers to their questions within two business days of the training.

While there are plenty of resources, online sexual harassment training is provided by the Department of Fair Employment and Housing through California’s Civil Rights Department.

Do Contractors or other non-traditional employees have to take Sexual Harassment Training in California?

No, independent contractors are not required to take this training. Volunteers and unpaid interns are also not required to take this training. However, part-time, temporary, and seasonal employees are required to take the training. For short-term employees, they must be trained within 30 calendar days (or 100 hours of work) from when they began working, whichever occurs first.

What is California Senate Bill 1343?

On January 1, 2019, California Senate Bill 1343 amended the California Fair Employment and Housing Act (FEHA) to require mandatory sexual harassment prevention training for a larger group of employers and employees than the previous bill. The previous bill only required employers to provide the training if they had 50 or more employees, while this bill reduced the requirement to only 5 employees. Also, the previous bill only required this training for supervisors while this bill has expanded the training to nonsupervisory employees as well.

Conclusion

California has taken proactive steps to help identify and prevent sexual harassment. Mandatory sexual harassment training in California is a great way to help employers and their employees in the state identify and prevent sexual abuse in the workplace.

That being said, providing this training, does not absolve employers from liability for any potential sexual harassment claims. Employees every day have to deal with unlawful sexual harassment in the workplace. If you believe you have become a victim of sexual harassment, as with most employment law issues, it is highly recommended that you seek the opinion of an experienced California employment lawyer. They will be able to assist in evaluating your claim and determining your best course of action.

Sexual misconduct is not acceptable in any scenario, including the workplace. Depending on the type of misconduct it may be either inadvertent or deliberate and malicious. Regardless of the motive, sexual misconduct in its many forms is illegal and can have a devastating impact on its victims. Those that think that something like this will never happen to them should be aware that sexual misconduct can happen regardless of gender, age, sexual orientation, or cultural background.

As an employee, you have a right to be protected from all forms of sexual misconduct in the workplace. That being said, it is important to understand the difference between sexual assault, sexual harassment, and sexual abuse.

Sexual Harassment

Sexual harassment can cover a broad range of situations. In California, any type of unwelcome sexual advances may be considered sexual harassment. This includes not only physical actions (unwanted touching), but also visual (sexually explicit gestures or images) and verbal actions (lewd comments or jokes) that are sexual in nature. Sexual harassment also includes actions that create a hostile, intimidating, or offensive work environment because of an employee’s sex.

Sexual harassment in the California workplace is typically seen in two different ways. The first is called “quid pro quo” where the perpetrator is usually in a position of power over the victim. “Quid pro quo” sexual harassment typically involves a superior pressuring an employee to engage in sexual activity for some type of employment benefit (e.g., pay raise, promotion, etc.). The second main category of sexual harassment is classified as a hostile work environment. This consists of any type of harassment that is either so severe or pervasive that it alters the entirety of an employee’s work environment.

Examples of Sexual Harassment

Sexual harassment can occur in many situations, but it is most often seen in the workplace or other types of professional settings. While sexual harassment may come in several forms, here are some examples of it:

1. Asking personal questions about an individual’s sex life.
2. Sending unsolicited texts or emails that are sexually explicit.
3. Requesting or making suggestions for sexual favors.
4. Touching someone without their consent in a sexual manner.
5. Lewd or offensive comments about an individual’s sex life or body.

Proving Sexual Harassment

To prove sexual harassment one must demonstrate the following:

(1) the conduct was unwelcome;

(2) the conduct was severe (serious conduct such as sexual assault that can occur in an isolated incident) or pervasive (occurred over an extended period of time or was evident throughout a company);

(3) the conduct was objectively offensive (a reasonable person in your situation would find the conduct offensive) and subjectively offensive (the victim personally found the behavior offensive);

(4) the conduct resulted in actual damages which can be either economic (e.g., lost wages for missing work) or noneconomic (e.g., emotional or physical distress).

Sexual Assault (vs. Sexual Harassment)

Sexual assault is much more specific than sexual harassment. Sexual assault requires actual contact, that is sexual in nature, and occurs without the consent of the other person. There is a wide range of actions that may be considered sexual assault and can be anything from unwanted touching to rape.

Examples of Sexual Assault

1. Forcing someone against their will to perform sexual acts.
2. Rape or attempted rape.
3. Sodomy or attempted sodomy.
4. Unwanted touching or fondling of another individual’s genitals or other body parts.

Sexual Abuse (vs. Sexual Harassment and Abuse)

Distinct from both harassment and assault is sexual abuse. While often seen with crimes against minors, sexual abuse is any type of sexual act that involves the use of manipulation, coercion, or force. Sexual abuse is most often seen in situations where the victims know each other and there is a level of trust. As a result, sexual abuse usually occurs when the perpetrator and victim have a close personal or familial relationship such as a partner, friend, or family member.

Examples of Sexual Abuse

1. Coercing someone to send sexually explicit videos or photos.
2. Threatening to release sexual photos or videos of someone without their consent.
3. Sexually assaulting someone when they are unable to consent (e.g., intoxicated or asleep).
4. Coercing someone to perform sexual acts they do not want to do.

Evidence for Proving Any Type of Sexual Misconduct

Whether it is sexual harassment, sexual assault, or sexual abuse, here are some of the common ways for providing proof:

1. Physical Evidence. This can include visible items such as torn clothing or scientific proof with the use of DNA.
2. Electronic Evidence. Any communication (e.g., text messages, emails, etc.) between the victim and the perpetrator that either directly or indirectly confirms that the illegal conduct occurred.
3. Medical Records. For instance, if the victim received medical attention for sexual assault, medical records from that visit may be used as evidence.
4. This can include testimony from both the victim and any eyewitnesses to the sexual misconduct.
5. Audio or Video Recordings. There are a lot of possibilities for using this kind of evidence. For instance, the victim may have recorded a conversation with the perpetrator. Or there may be a video recording of the incident by a witness with a cell phone or security camera footage.

If you are the victim of any type of sexual misconduct in the workplace or are simply looking to understand the difference between sexual assault and sexual harassment, an experienced California employment lawyer can help assist you with what you need to do next. They can help with the following:

1. Investigation. An attorney can conduct an investigation to help determine what type of sexual misconduct occurred and to gather evidence to support your claim.
2. Police Report/Restraining Order. An attorney can also help you take the initial steps to either file a police report or restraining order. This is essential for ensuring that the investigation is conducted properly and for keeping the perpetrator from making any contact with you.
3. Handling the Claim. An attorney can help determine the best course of action and either negotiate an appropriate settlement or, if necessary, take your case to trial.

Conclusion

While there are differences between sexual harassment and sexual assault including sexual abuse, they can all have a devasting impact. None of this illegal behavior should be tolerated and should be reported immediately, whether you are the victim or an eyewitness.

However, it’s not always clear what type of sexual misconduct has occurred. Or it may be that you are not sure if what happened was illegal at all. If you believe that you may have been the victim of sexual misconduct at the workplace, it is highly recommended that you seek the opinion of an experienced attorney. They will be able to assist in evaluating and handling all aspects of your claim.

In case you’re wondering what’s your case and if you’re dealing with sexual harassment vs sexual assault or something else, don’t hesitate to book a free consultation with a JLG lawyer. Don’t hesitate to contact us directly at 818-630-7280.

Verbal sexual harassment in the California workplace may be considered an abuse of employees and employers may be sued for it. As an employee, you have a right to be protected from certain types of verbal harassment in the workplace. However, it may be difficult to know if a situation you faced would be considered verbal harassment or not. Further, even if it is verbal harassment, it does not automatically mean an employee can take legal action.

It’s important to understand what is considered verbal harassment in general and when you can take legal action. We will then talk about more specifically if you can be sexually harassed verbally. For professional advice, please seek an experienced California employment law attorney.

What is Considered Verbal Harassment?

While there is no bright line rule, verbal harassment can include any of the following: (1) threats, (2) yelling, (3) cursing, (4) slurs, (5) offensive jokes, (6) insults, (7) name-calling, (8) innuendos, (9) derogatory comments, and (10) mocking. In California, verbal harassment is only illegal if it is tied to an unlawful reason. The employee must be the target of this harassment due to some protected characteristic. This means that harassment, by itself, may not be considered a crime. That being said, there are many ways in which verbal harassment can be illegal.

In dealing with any type of action against an employee, including verbal harassment, a determining factor for whether the action qualifies as harassment is whether it has created a hostile work environment. This can occur if the action is frequent, severe, or both. In addition, for the action to be considered harassment, it must be both objectively and subjectively hostile or abusive.

When it comes to verbal harassment in California, as with other violations at the workplace, the law that provides the greatest protection to the employee is the law that will apply. The following laws may apply when there is an incident of verbal harassment in the California workplace:

Title VII of the Civil Rights Act of 1964 – this federal law prohibits discrimination on the basis of race, color, religion, sex, or national origin. Under Title VII, certain forms of verbal harassment may be considered discrimination depending on the basis for the harassment.

The Fair Employment and Housing Act (FEHA) – this California law protects employees against several types of discrimination and harassment. This law even extends to others such as independent contractors, job applicants, and unpaid interns. Unlike Title VII, FEHA applies their anti-harassment provisions to all private, state, and local employers, regardless of the number of employees.

The Age Discrimination in Employment Act of 1967 – this federal law prohibits employment discrimination (including harassment) against anyone at least 40 years of age.

The Americans with Disabilities Act – this federal law protects employees with physical and mental disabilities from discrimination and harassment based on their disability.

The California State Constitution – similar to Title VII, California’s state constitution prohibits discrimination (including harassment) against employees on the basis of sex, race, creed, color, nationality, or ethnic origin.

While any of these laws may be applicable to a situation involving verbal harassment, the laws that provide the strongest protections for employees are the FEHA and Title VII of the Civil Rights Act of 1964.

What is Verbal Sexual Harassment?

Verbal sexual harassment is often seen in “quid pro quo” (Latin for “this for that”) scenarios. Typically, a sexual favor is requested or demanded in exchange for a specific job benefit, or simply just to keep one’s job. For instance, verbal sexual harassment occurs when an employer indicates they will give their employee a promotion or raise if they perform a sexual favor for them. Verbal sexual harassment of this kind may also be either express or implied.

Verbal sexual harassment also occurs when a favor is not being asked, but rather, the language used is so offensive as to constitute harassment. To be considered verbal sexual harassment these comments need to result in a hostile work environment due to the severity and/or pervasiveness of the comments.

Examples of Verbal Sexual Harassment

Examples of verbal sexual harassment can include (1) unwanted sexual advances, (2) comments on an employee’s body, (3) requests or threats for sexual favors, (4) inappropriate discussions of graphic sexual acts; (5) jokes, insults, or slurs that are sexual in nature; or (6) crude or vulgar sexual comments.

Examples of what is not Considered Verbal Sexual Harassment

It’s important to note that some verbal comments may be upsetting, embarrassing, and make you feel uncomfortable, yet not be considered verbal sexual harassment. While context is important, examples that are likely to not be considered verbal sexual harassment include (1) compliments on an outfit, (2) invitation to go out for dinner or coffee, or (3) other types of friendly non-sexual compliments.

That being said, if the innocent compliment or request is repeated it may rise to the level of verbal sexual harassment. For instance, one offer to a co-worker to go out on a date would not be considered sexual harassment. However, repeated requests after the co-worker informed them they were not interested may rise to the level of sexual harassment. The same may be true of compliments if an employee indicates that the comments make them feel uncomfortable and they continue.

What Could Be Non-Verbal Sexual Harassment?

In contrast with verbal sexual harassment, non-verbal sexual harassment is usually easier to determine. For instance, unwanted physical touching is clearly a form of sexual harassment. That doesn’t mean that every instance in which an employee is touched is sexual harassment. A friendly touch on the arm or back is likely not to rise to the level of sexual harassment even if an employee believes it was sexual in nature. That being said, if you request the touching to stop, and it continues, an employer’s touching may be considered a form of sexual harassment. Even then, a court may not consider the touching sexual harassment, even if the touching is inappropriate or offensive. Other factors will be considered, such as the severity and frequency of the touches.

Conclusion

The area of verbal harassment can be very subjective and it’s not always clear if one has become the victim of verbal harassment. Or it may be that you have suffered verbal harassment, but you are not sure if you can take any legal action. As with most employment law issues, it is highly recommended that you seek the opinion of an experienced California labor and employment law attorney. They will be able to assist in evaluating your claim and determining your best course of action.