Is Your Harassment Prevention Training Legally Compliant?

By Traci Park, Kelly Trainer & Meaghan Snyder

Most agencies have sexual harassment training.  But the laws constantly evolve.  Read on to find out the new requirements for what your training must include to address sexual orientation, gender identity, and gender expression.

What is SB 396?

SB 396, which became effective January 1, 2018, adds a new element to existing California law mandating that public employers (and private employers with 50 or more employees) provide at least two hours of training and education regarding sexual harassment to all supervisory employees once every two years.

The new law requires employers to include, as a component of sexual harassment training for supervisors, training regarding gender identity, gender expression, and sexual orientation.  This training is designed to instruct supervisors how to identify and prevent harassment based on gender identity, gender expression, and sexual orientation.  Both gender and sexual orientation are separate and distinct legally protected characteristics.

What Do the Various Terms Covered by SB 396 Actually Mean?

The Department of Fair Employment and Housing (DFEH) has approved new regulations regarding gender identity and expression in the workplace that are useful for understanding the practical implications of the new training requirements.

  • The regulations define “gender expression” as a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • Gender identity” is defined as a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
  • Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth.
  • The regulations also include a definition for “transitioning,” which is defined as a process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth. This may or may not include changes in name and pronoun, bathroom facility usage, and participation in employer-sponsored activities such as sports teams and volunteering.  The process may also include undergoing hormone therapy, sex reassignment surgery, or other medical procedures.
  • Sex includes, but is not limited to, a person’s gender, gender identity and gender expression, pregnancy, childbirth, breastfeeding, and medical conditions related to pregnancy, childbirth, or breastfeeding.
  • Sexual orientation is defined as a person’s emotional, romantic, or sexual attraction to another person. Types of sexual orientations include, but are not limited to, heterosexuality, homosexuality, bisexuality, pansexuality and asexuality.

What Are Some Important Related Issues?

Along with training regarding gender identity, gender expression, and sexual orientation, employers should be cognizant of the practical implications of the rights of transgender employees in the workplace.  For example:

  • Employers must call employees by their preferred name and identify them based on their preferred gender identity.
  • Employees are permitted to use a restroom that corresponds with their gender identity.
  • Employees are permitted to dress consistently with their gender expression. Note, however, that there are exceptions where employees are required to wear a uniform and where restrictions on dress are imposed for health and safety purposes.

How Can Employers Provide Effective SB 396 Training?

The new law contains built-in language to ensure that SB 396 training is understandable and accessible.  The law mandates that SB 396 training include practical examples of harassment based on gender identity, gender expression, and sexual orientation, and also requires that the training be presented by trainers or educators with knowledge and expertise in those areas.  As such, California employers should provide training that includes hypothetical scenarios that permit employees to actually conceptualize and contemplate scenarios where unlawful harassment may be occurring.  This ensures that employees do not merely consider the concepts of gender identity, gender expression, and sexual orientation in a vacuum, but rather recognize the situations where unlawful harassment can and does occur, and how it can be prevented in the future.

Burke offers engaging and entertaining harassment prevention training that is fully compliant with all legal requirements.  We also frequently offer training that is customized to meet the unique needs of public safety agencies.

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