Cause and Effect: A Few of the Real World Impacts of the Heightened Awareness of Harassment and Transgender Issues

Unless you’ve been living under a rock, you know that the media and society at large have taken a substantial new interest in issues related to harassment in the workplace and Transgender rights. The “Me Too” and “Time’s Up” movements have catapulted the issue of harassment to the forefront of your daily news feed. Likewise, the acceptance by our society of Transgender employees, entertainers and even politicians is expanding daily.

It should come as no surprise that the California Legislature has been hard at work creating and expanding new legal protections in the areas of employment and public accommodation for harassment victims and those who identify as Transgender. For a change, the Legislature even is policing its own house, enacting a number of protections for harassment victims, whistleblowers, lobbyists, and others who work in government.

For employers, here are a few of the real world impacts of these new laws:

SB 396 – Expanded Harassment Training

As most of you know, California law requires employers with 50 or more employees to provide at least two hours of training and education on harassment (sexual and otherwise) to all supervisory employees. This training must be provided within six months of starting the supervisory role and once every two years thereafter. SB 396 now requires employers to include as a part of that training a component based on gender identity, gender expression, and sexual orientation. That mandated training must include practical examples of harassment based on these characteristics, and must be presented by trainers or educators with knowledge and expertise in those areas.

Agricultural employers also have new obligations. Another new law, S.B. 295, requires that farm labor contractors comply with existing requirements to conduct harassment training for certain employees by providing the training in the language understood by the employee.

Smaller employers should take note that SB 396 also requires employers with 5 or more employees to post a new workplace poster regarding transgender rights in a prominent and accessible location.

AB 168 – Protected Salary Information

The power differential demonstrated historically in many workplaces manifests itself in ways other than sexual harassment. One of those ways is the historic income difference between the genders. New revisions to Section 432.3 of the California Labor Code seek to address this issue. California employers now may not make any inquiry from a candidate or recruiter seeking salary history information, and may not rely on any salary history information to determine whether to employ the candidate or what salary to offer. In addition, “upon reasonable request,” an employer must provide the pay scale for the position to the applicant.

AB 1870- Expanded Limitations Period For Harassment Claims

In order to make harassment claims easier to prosecute, a number of states are enacting laws designed to make it easier for victims to come forward with their claims. California is no exception.

On January 12, 2018, the “Stopping Harassment and Reporting Extension Act” was introduced into the California Legislature. The stated purpose of the bill’s authors is to extend the time period for reporting sexual harassment claims from one to three years. However, as the bill currently is written, it would extend the time for filing complaints on all FEHA-based causes of action from one to three years. The bill is not yet scheduled for a vote.

Issues of harassment and gender inequity no longer can be ignored and should not be tolerated by any right thinking employer. However, the problems can have many solutions, and a robust discussion is necessary to find the best ways forward. As the Legislature works to craft its solutions, California employers must remain diligent to ensure that their policies, procedures and trainings are fully up to date.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Rex Berry
rberry@kmtg.com | 916.321.4570