Preventing sexual harassment of employees
Incidents and allegations of sexual harassment are coming to light at unprecedented rates across the country in a variety of professions. Employers in every industry, including education, have an obligation under the law to take “all reasonable steps” necessary to prevent the occurrence of discrimination and harassment (Government Code 12940).
To this end, the California Department of Fair Employment and Housing and the U.S. Equal Employment Opportunity Commission — the state and federal agencies responsible for investigating complaints of sexual harassment — have issued guidance emphasizing that clear anti-harassment policies and regular staff training are essential.

In order to help school districts and county offices of education comply with the law and fulfill their obligations to their staff and community, CSBA updated its sample board policy and administrative regulation 4119.11/4219.11/4319.11 – Sexual Harassment in March 2018. The revised policy strengthens the district’s prohibition against sexual harassment, including harassment based on the victim’s gender, gender identity, gender expression or sexual orientation. The samples also reflect Senate Bill 396, which requires districts to post a DFEH poster on transgender rights in a prominent location, and if the district has 50 or more employees, to provide training to supervisors pertaining to harassment based on gender identity, gender expression and sexual orientation. Sample complaint procedures are provided in BP/AR 4030 – Nondiscrimination in Employment.

“No district or county office of education wants to make headlines due to charges of sexual harassment by or of its employees.”
—Robert Tuerck, CSBA assistant executive director of policy and governance technology services
“No district or county office of education wants to make headlines due to charges of sexual harassment by or of its employees,” said Robert Tuerck, CSBA’s assistant executive director of policy and governance technology services. “Given the nationwide attention to this issue, this would be a good time to review local policies and practices to ensure that they are being implemented consistently and effectively.”
Updated CSBA sample policy regarding sexual harassment now available
Written policies provide an opportunity for governing boards to state their strong commitment to providing a safe work environment. Such policies must address the required components listed in 2 CCR 10023, and should also clarify the types of conduct that are considered unlawful sexual harassment. The courts generally recognize two types of conduct as violating Title VII of the Civil Rights Act:

  • “quid pro quo” harassment, in which submission to or rejection of the harassment is used as the basis for employment decisions affecting the victim, such as demotion or termination; or
  • “hostile environment” harassment, in which the conduct is so severe, persistent or pervasive that it creates a hostile, intimidating or abusive work environment.

Although isolated incidents or offhand comments may not meet these definitions, employers have an obligation to stop such misconduct before it rises to the level of unlawful conduct. Adopting sexual harassment policies is an important prevention strategy, and effectively implementing those policies is equally important. The policy must be communicated to employees in accordance with law so that they understand their rights and the procedures that are available to them for submitting a complaint.

Staff training helps reinforce the policy by ensuring that staff have the knowledge and practical guidance to prevent and respond to sexual harassment. State law requires districts with 50 or more employees to provide supervisory employees with at least two hours of classroom or other interactive training regarding sexual harassment. However, districts with fewer employees can also provide training to supervisory employees and all districts can provide training to nonsupervisory employees to help prevent discrimination and harassment.

Districts that fail to exercise reasonable care to prevent and promptly correct harassing behavior could be held liable for unlawful harassment committed by their employees. Furthermore, as Tuerck noted, “A harassment-free environment is critical to employees’ ability to perform their best and thus impacts the quality of education that California’s school children receive.”

DFEH, Workplace Harassment Guide for California Employers, www.dfeh.ca.gov

EEOC, Promising Practices for Preventing Harassment, www.eeoc.gov