By Ramzi Nimr
Many new California labor and employment laws took effect as of January 1. Among the changes is Senate Bill 396, which has three primary components: first, it seeks to update sexual harassment training in the workplace; second, it requires that companies display a poster discussing transgender rights; and finally, it expands the definition of an “individual with employment barriers” to including transgender and gender-nonconforming individuals. This post focuses only on the first aspect of the new statute, which, at first glance, seems promising. Unfortunately, a closer look reveals that it falls short of achieving its goals.
Senate Bill 396 has its origins in Assembly Bill 1825, which was enacted in 2005. Assembly Bill 1825 mandated that California organizations provide two hours of sexual harassment training to their supervisors every two years. The state government amended AB 1825 in 2015 to require that a portion of that training be devoted to addressing “abusive conduct.”
The newly-enacted SB 396 seems to mark significant progress in addressing sexual harassment. State Senator Ricardo Lara, who authored the bill, touted this as a “first in the nation law.” It requires employers with 50 or more employees to include a specific module on harassment relating to gender identity, gender expression, and sexual orientation in their mandatory sexual harassment training. Under the statute, covered employers must provide two hours of this training. Furthermore, any individual who assumes a supervisory position must be given such training within six months of their assuming that position. Finally, the bill mandates that each employer must hang a poster discussing transgender rights in “a prominent and accessible location in the workplace” in accordance with regulations to be developed by the Department of Fair Employment and Housing (DFEH).
The reality is less promising: requiring instruction about harassment based on gender identity, gender expression, and sexual orientation is undoubtedly important, but the state government’s incremental approach—adding various components over time—has produced a fragmented and incomplete product, with limited incentive for employers to comply.
The SB 396 training requirements apply only to supervisory employees, and mandate training only once every two years. Moreover, SB 396’s changes are minimal in light of the preexisting requirements of AB 1825: the latter statute required near-identical harassment training over a decade ago, and SB 396 does little to expand those requirements—it merely adds a new component to the mandatory training.
Finally, the enforcement mechanisms of SB 396 are largely toothless. Sections 1 (e) and 2 (f) provide: “If an employer violates the requirements of this section, the [“DFEH”] may seek an order requiring the employer to comply with these requirements.” In other words, violating these protective measures does not incur any real penalties in and of itself. If an individual so chooses, they can file a complaint with the DFEH, which in turn may seek an order to compel compliance. Only if the Department secures an injunction, and the company continues to violate the law can it be subject to fines or other punitive measures. As a result, there is little incentive to comply with the law at the outset. Enforcement of the law by the Department is also unlikely because it places the burden on employees to remedy the situation, which could give rise to further harassment or retaliation.
Given these flaws, the statute hardly warrants the kind of self-congratulatory statements issued by State Senator Lara. These statements only serve to obscure the fact that the new law is purely decorative, lacking the practical bite necessary to ensure companies provide much-needed training and to ensure companies crack down on harassment in the workplace. Regardless of his intention, Lara has simply afforded himself, and, as a byproduct, other state legislators and politicians, a disingenuous sense of credibility as champions of social justice by giving the false impression of progress. In fact, this is not only disingenuous—it is dangerous; such a false impression could serve to discourage individuals from fighting for more substantial protections in the workplace by wrongly suggesting that they already have those protections. In reality, much more needs to be done to provide basic safety to individuals of all gender identities in the workplace and elsewhere.