In response to the #MeToo movement, the California Legislature has recently implemented significant changes to existing law about sexual harassment in the workplace. Most notable are two new laws relating to mandatory sexual harassment prevention training and an expanded definition of “hostile work environment” in the context of sexually harassing conduct.

New Sexual Harassment Prevention Training Requirements.

Previously, California law required only employers with 50 or more employees to conduct bi-annual, two-hour sexual harassment training for supervisory employees. Under a new law, Senate Bill 1343, California employers who employ five or more employees must now provide one hour of sexual harassment prevention training to nonsupervisory employees and two hours to supervisory employees. This training must take place by January 1, 2020, and thereafter, each employee must be retrained every two years.

Another important change regarding mandatory training is that, starting January 1, 2020, employers with five or more employees must also provide sexual harassment prevention training to all seasonal and temporary employees within 30 days of their hire date or within the first 100 hours worked (whichever occurs first). Previously, there was no requirement to train temporary or seasonal employees.

New Legal Definition for Hostile Work Environment Created by Sexual Harassment.

In 2018, the California Legislature broadened the definition of “hostile work environment” in the context of sexually harassing conduct. California courts had relied on the Ninth Circuit’s standard, as set forth in Brooks v. City of San Mateoⁱ, for what constitutes a hostile work environment in the context of sexual harassment. This former standard required that the conduct must be “severe and pervasive” in order to constitute a violation of the law prohibiting sexual harassment.

However, Senate Bill 1300 specifically rejects the Brooks standard. Instead, the new law defines hostile work environment created by sexual harassment to specifically include “a single incident of harassing conduct” so long as such incident “has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.”ⁱⁱ

In addition, the new standard directs courts to consider the “totality of the circumstances” when determining whether specific conduct constitutes a hostile work environment.ⁱⁱⁱ The law now specifically states that even a stray remark could possibly constitute a hostile work environment (even if made outside the direct context of an employment decision or uttered by a non-decision maker).^iv Finally, Senate Bill 1300 explicitly states that sexual harassment cases are rarely appropriate for summary judgment.^v

These new legislative changes effectively allow employees to bring sexual harassment claims for conduct that, even if only occasional or seemingly trivial, altered the employee’s working conditions and made it more difficult, under a reasonable person standard, for the employee to perform his or her job.^vi Over time, as courts review and interpret these new legislative changes to the standard for hostile work environment, we will gain more clarity about what type of specific conduct constitutes sexual harassment under this new standard.

Best Practices for Employers.

These new changes in the law regarding sexual harassment will impact not only law firm clients, but also law firms themselves. Employers with five or more employees have only until January 1, 2020 to train all of their employees in sexual harassment prevention. If they have not already done so, employers should research the available training options and schedule this training for their workforce.

Notably, the legislative changes to the definition of hostile work environment will now include more behaviors that had not previously been considered to be sexual harassment. Thus, it is imperative that employers (and their employees) fully understand exactly what constitutes sexual harassment and a hostile work environment and how best to avoid engaging in such conduct. This can be accomplished through effective training and through clearly stated company polices prohibiting sexual harassment. All such policies should be consistently and fairly enforced throughout all levels of the organization. Most importantly, employers should take great care to create and foster a workplace culture that promotes genuine diversity and inclusion for everyone.