Description
California law establishes new training rules and other requirements relating to unlawful harassment, discrimination and retaliation. The new rules address investigations, the inability to include confidentiality provisions in settlements, dealing with harassment complaints, defamation rules and privileges, and the creation of new standards to determine liability. The rules create the need to update policies to cover all characteristics protected by California law. Training must now be provided by all employers with five or more employees to supervisors and lower level employees. It must include components on the negative effects of bullying and abusive conduct, and the topic of transgender, gender identity and sexual orientation discrimination and harassment.
Every workplace in America is vulnerable to sexual harassment claims under the new rules. Statistically, they are among the most common claims filed against employers and can have a devastating impact on workplaces, victims and careers. While experts recognize that prevention is the best cure, employers often wait until claims are filed to address problems.
Employers must take direct, immediate and ongoing steps to train employees and prevent harassment. Employers must also “take reasonable steps” to prevent and correct discrimination, harassment and retaliation. In the new edition of his publication, Attorney Richard J. Simmons of Sheppard, Mullin, Richter & Hampton LLP, provides essential guidance to employers regarding prevention steps, including training, complaint procedures, investigation techniques, corrective action and remedial measures. The publication provides tools, including updated training outlines, quizzes, policies, and “promise” statements, that will help employers avoid problems altogether and win cases that lack merit.
Among the subjects addressed in the publication are the following:
- Guidelines For Prevention
- Sample Training Rules, Outlines & Guidelines
- The Legislative Changes
- Remedies & Premiums
- New Abusive Conduct & Bullying Standards
- New Rules For Temporary And Seasonal Employees
- Analysis Of EEOC Guidelines
- Legal Responsibilities
- Standards For Discipline
- Training Nonsupervisory Employees
- CRD’s Online Training
- CRD’s 2021 Regulations
- Orientation Checklist & Form
- New Rules Governing Confidentiality
- The New California Training Law
- Sexual Orientation, Gender Identity & Gender Expression Rules
- Promises Of Compliance
- Information Sheet On Harassment
- Review Of Supreme Court Standards
- Sample Policies
- Investigation Guidelines
- Rules Against Retaliation
- New Record-Keeping Rules
- Rules For Special Industries
- Training Minors
- Defending Harassment And Retaliation Claims
- New Cases & Legal Standards
- Grievance Machinery
- Employee Quizzes
- Interactive Training Tools
- Harassment By Nonemployees
- CRD’s Harassment Guide for Employers
- Special Industry Standards
Table Of Contents
SECTION 1 INTRODUCTION
1.1 The Gravity Of The Issue
1.2 The Need For Training
1.3 Prevention Is The Best Cure
1.4 Recent Revisions To California’s Sexual Harassment Laws
1.5 Impact Of Harassment Claims
1.6 Need For Comprehension Of Legal Responsibilities
1.7 Questions Addressed By The Manual
1.8 Role Of Legal Counsel
SECTION 2 GOALS OF AN EFFECTIVE EMPLOYEE TRAINING PROGRAM
2.1 The Role Of Training
2.2 Education As To What Constitutes Harassment
2.3 Prevention Of Harassment
2.4 Legal Mandates
2.5 Creating Vehicles For Speedy Resolutions Of Problems
2.6 Deterrence Of Inappropriate Conduct
2.7 Notice Of Potential Discipline
2.8 The Ability To Correct Problems In A Timely Manner
2.9 Defenses Recognized By Supreme Court Cases
2.10 Publicizing The Availability Of A Cost-Free Internal Dispute-Resolution Mechanism
2.11 Employee Morale
2.12 Promoting Fairness
2.13 Cost Savings
2.14 DFEH Statement On Training
2.15 California’s Sexual Harassment Training Obligation
2.16 Specialized Training Obligations For Specified Industries
2.17 Training Outlines And Resources
2.18 Sample Training Outlines
SECTION 3 THE LAWS THAT GOVERN HARASSMENT CLAIMS
3.1 Federal Law — Title VII
3.2 State Laws
3.3 Regulation Of Sexual Harassment In Business, Service, And Professional Relationships
3.4 Common Law Claims
3.5 Duty To Take All Affirmative Steps Necessary To Prevent Unlawful Harassment From Occurring
3.6 Remedial Action
SECTION 4 THE JUDICIAL PERSPECTIVE
4.1 Overview
4.2 Meritor Savings Bank v. Vinson
4.3 Harris v. Forklift Systems, Inc.
4.4 Oncale v. Sundowner Offshore Services, Inc.
4.5 Burlington Industries, Inc. v. Ellerth
4.6 Faragher v. City of Boca Raton
4.7 Clark County School District v. Breeden
4.8 Pennsylvania State Police v. Suders
4.9 Crawford v. Metropolitan Government Of Nashville And Davidson County, Tennessee
4.10 Vance v. Ball State University
SECTION 5 WHAT IS SEXUAL HARASSMENT?
5.1 The Theories Of Unlawful Harassment
5.2 Conduct Forming The Basis Of Harassment Claims/p>
5.3 Harassment Based On Other Protected Characteristics
SECTION 6 STANDARDS USED TO IMPOSE LIABILITY AGAINST SUPERVISORS AND EMPLOYERS
6.1 Relevance Of Employee Status
6.2 EEOC Guidelines
6.3 Personal Liability
6.4 Confidentiality Provisions In Settlement Agreements
6.5 FEHA’s Prohibitions Against Nondisparagement Agreements
6.6 Defamation Standards
6.7 Agreements Not To Testify In Sexual Harassment Cases
SECTION 7 POLICIES BANNING UNLAWFUL HARASSMENT AND DISCRIMINATION
7.1 Zero Tolerance Policies
7.2 Anti-Fraternization Policies
7.3 Employee Promises To Comply With Policies And Properly Register Complaints
SECTION 8 RECEIVING AND HANDLING COMPLAINTS OF HARASSMENT
8.1 Investigations
8.2 Reactions To Complaints
8.3 Confidentiality
8.4 Recognizing The Importance Of The Legal Rights Involved
8.5 Prompt Reporting To The Human Resources Department
8.6 Avoid Prejudging Claims
8.7 Questions For Witnesses
8.8 Credibility Determinations
8.9 Reaching A Determination
8.10 Use Of 800 Numbers And Anonymous Reporting Systems
8.11 Rules Against Retaliation
8.12 DFEH Workplace Harassment Guide For Employers
SECTION 9 PRACTICAL CONSIDERATIONS
9.1 Repudiating Inappropriate Statements
9.2 Disciplining Employees Who Violate The Law Or The Employer’s Policies
APPENDIX A EQUAL EMPLOYMENT OPPORTUNITY COMMISSION GUIDELINES ON DISCRIMINATION BECAUSE OF SEX
APPENDIX B RELEVANT EXCERPTS FROM THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT
APPENDIX C POSTER OF THE CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING BANNING HARASSMENT
APPENDIX D SAMPLE INFORMATION SHEET OF THE CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING DESCRIBING LAW AGAINST SEXUAL HARASSMENT
APPENDIX E ALTERNATIVE INFORMATION SHEET DESCRIBING LAW AGAINST SEXUAL HARASSMENT
APPENDIX F SAMPLE POLICIES AGAINST HARASSMENT
APPENDIX G SAMPLE PROMISES OF COMPLIANCE WITH POLICIES
APPENDIX H NEW HIRE AND ORIENTATION CHECKLIST
APPENDIX I SEXUAL HARASSMENT TRAINING ATTENDANCE LIST
APPENDIX J WORK STUDY QUIZZES ON HARASSMENT
APPENDIX K HOURLY EMPLOYEE QUIZ
APPENDIX L SUPERVISOR AND MANAGER QUIZ
APPENDIX M SEXUAL HARASSMENT TRAINING TEST FOR SUPERVISORS
APPENDIX N PRACTICAL EXAMPLES OF ADDRESSING SEXUAL HARASSMENT ISSUES IN THE WORKPLACE
APPENDIX O TRAINING SCENARIOS RAISING SEXUAL HARASSMENT ISSUES
APPENDIX P ADDITIONAL QUESTIONS FOR HR OFFICIALS AND MANAGERS
APPENDIX Q ANSWER SHEET
APPENDIX R DIVERSITY AND SENSITIVITY TRAINING OUTLINE FOR EXECUTIVES AND SUPERVISORS
APPENDIX S TRAINING ATTENDANCE LIST
APPENDIX T SUPERVISOR AND MANAGER DIVERSITY QUIZ
APPENDIX U CALIFORNIA’S SEXUAL HARASSMENT TRAINING LAW (AS AMENDED)
APPENDIX V SEXUAL HARASSMENT TRAINING AND EDUCATION REGULATIONS OF THE FAIR EMPLOYMENT AND HOUSING COUNCIL
APPENDIX W CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING WORKPLACE HARASSMENT GUIDE FOR CALIFORNIA EMPLOYERS
APPENDIX X POSTER OF THE CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING ON TRANSGENDER RIGHTS IN THE WORKPLACE
APPENDIX Y SHORT COURSE OUTLINE ON SEXUAL HARASSMENT TRAINING UNDER AB 1825
APPENDIX Z SEXUAL HARASSMENT PREVENTION TRAINING FOR EMPLOYEES FAQ (DFEH Oct. 15, 2020)
About The Author
Richard J. Simmons is a Partner in the law firm of Sheppard, Mullin, Richter & Hampton LLP in Los Angeles. He represents employers in various employment law matters involving litigation throughout the country and general advice regarding state and federal wage and hour laws, employment discrimination, wrongful discharge, employee discipline and termination, employee benefits, affirmative action, union representation proceedings, and arbitrations. Mr. Simmons received his B.A., summa cum laude, from the University of Massachusetts, where he was a Commonwealth Scholar and graduated in the Phi Kappa Phi Honor Society. He received his J.D. from Berkeley Law at the University of California at Berkeley where he was the Editor-in-Chief of the Industrial Relations Law Journal, now the Berkeley Journal of Employment and Labor Law.
Mr. Simmons argued the only case before the California Supreme Court that produced a victory for employers and business in 2018. He was recently recognized as the Labor and Employment Attorney of the Year by the Los Angeles Business Journal and was inducted into the Employment Lawyers Hall of Fame. He has lectured nationally on wage and hour, employment discrimination, wrongful termination, and other employment and labor relations matters. He is a member of the National Advisory Board to the Berkeley Journal of Employment and Labor Law, published by Berkeley Law at the University of California at Berkeley. He was also appointed by the California Industrial Welfare Commission as a member of three Minimum Wage Boards for the State of California.
