This section contains the following information:

• Harassment Prevention Policies
• Required Postings and Notices
• Talent Agency Harassment Training and Education Requirement

These reasonable steps in preventing harassment include an obligation to inform employees about their protections against harassment in the workplace, including:

• Complying with posting and notice requirements.
• Creating and distributing anti-harassment policies for employee handbooks.
• Providing training (see Mandatory Harassment Prevention Training).
• Ensuring that an effective complaint mechanism is in place and that employees are aware of the process.
• Conducting investigations (see Harassment Investigation).
• Correcting and remedying any harassment in the workplace, including taking steps to prevent future acts (see Resolving a Sexual Harassment Complaint).

Whether an employer has met its duty to take reasonable steps to prevent and correct harassing conduct will be examined individually, on a case-by-case basis, looking at many factors that sometimes are unique to the particular employer.2

These factors may include, but are not limited to:

• Workforce size.
• Budget.
• Nature of the business.
• The facts of a particular case.

Take your prevention obligations seriously. A strong effort to prevent harassment can:

• Prevent unlawful conduct from occurring;
• Help you avoid or decrease liability; and
• Make the workplace a comfortable environment for everyone.

An employee cannot sue for failure to prevent harassment as a “stand-alone” claim. Instead, the employee must also have a valid underlying claim of discrimination, harassment or retaliation. However, the CRD can independently seek non-monetary preventative remedies for a violation of the duty to prevent, regardless of whether the employee has prevailed on an underlying claim.3 For instance, the CRD could mandate the employer to take preventive steps such as training or implementing new policies and practices.

The following is a discussion of the steps that need to be taken to ensure that employees are informed about their protections.

Harassment Prevention Policies

California law requires employers to develop written harassment, discrimination and retaliation prevention policies.4

• It is critical to both develop and implement written anti-harassment and non-discrimination policies that contain effective internal complaint procedures.

The fact that you maintain an anti-harassment policy and an internal complaint procedure does not completely insulate you from liability for harassment. If your policy does not specifically prohibit harassment or if your procedure requires that an employee must first report an incident to a supervisor who might actually be the harasser, the policies and procedures are not effective and are not compliant with the law.

Policy Contents

Your harassment, discrimination and retaliation prevention policy must meet ten different requirements.5

Your policy must:

1. Be in writing.
2. List all protected categories covered under the FEHA (not just sex/gender, but race, religion, national origin, etc.). You should also clearly describe the types of conduct that constitute harassment under state and federal laws.
3. Indicate that the law prohibits supervisors, managers, coworkers and third parties with whom the employee comes into contact from engaging in prohibited conduct.
4. Include a complaint process. The process that you develop must ensure that complaints receive all of the following:
• A designation of confidentiality to the extent possible;
• A timely response;
• An impartial and timely investigation by qualified personnel;
• Documentation and tracking for reasonable progress;
• Appropriate options for remedial actions and resolutions; and
• Timely closure.
5. Make clear that an employee has the right to complain about harassment or participate in any workplace investigation without fear of retaliation.
6. State that confidentiality will be kept by the employer to the extent possible. However, the policy should not indicate that the investigation will be kept completely confidential. For more information, see Harassment Investigation.
7. Explain that the employee need not complain directly to their immediate supervisor and provide an alternative complaint mechanism, including but not limited to:
• Direct oral or written communication with a designated company representative, such as an HR manager, EEO officer, or other supervisor;
• A complaint hotline;
• Access to an ombudsperson; and/or
• Identification of the CRD or the EEOC as additional avenues for lodging complaints.
8. Instruct supervisors to report any complaints of misconduct to a designated company representative (such as an HR manager) so that the company can try to resolve the claim internally.
9. Explain your process for investigating all complaints of misconduct — harassment as well as other prohibited conduct. Indicate that you will conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
10. Include a statement that if misconduct is found at the end of the investigation, your company will take appropriate corrective and remedial measures (which can include discipline and other measures such as future training).

• Harassment, Discrimination and Retaliation Prevention Policy - Five or More Employees
• Harassment, Discrimination and Retaliation Prevention Policy - Five or More Employees - Spanish
• Harassment, Discrimination and Retaliation Prevention Policy - Less Than Five Employees
• Harassment, Discrimination and Retaliation Prevention Policy - Less Than Five Employees - Spanish

These are the minimum legal requirements for a written prevention policy under California law. In addition, it is a best practice for an employer’s harassment prevention policy to:

• Prohibit all conduct that is unprofessional (zero tolerance policy).
• Include an enforceable statement that the company’s rules prohibit this conduct, regardless of whether the conduct amounts to a legal violation.

• This policy, along with many more, is also available as part of CalChamber’s Employee Handbook Creator®.

Distribution of the Policy

You must distribute your harassment, discrimination and retaliation prevention policy using one or more of the following methods:6

• Printing and providing a copy to all employees with an acknowledgment form for the employee to sign and return;
• Sending the policy via email with an acknowledgment return form;
• Posting current versions of the policies on a company intranet with a tracking system that ensures all employees have read and acknowledged receipt of the policies;
• Discussing policies upon hire and/or during a new hire orientation session; and/or
• Any other way that ensures employees receive and understand the policies.

‘Reasonable Steps’ in a Multi-lingual Workplace

A multi-lingual workforce can make it more difficult for an employer to communicate anti-harassment policies to employees and make it more difficult for the employer to determine what “reasonable steps” it should take to prevent harassment.

Under California law, if your workforce at any facility or establishment contains 10 percent or more of persons who speak a language other than English as their spoken language, you must translate your policy into every language spoken by at least 10 percent of the workforce.7

A federal case highlights why this issue is important. In EEOC v. The Spud Seller Inc., a federal court ruled that the employer could not use the Ellerth/Faragher defense in a sexual harassment lawsuit because the employer’s policy was not translated into Spanish or that written translations of the policy were provided to Spanish-speaking employees.

All the victims in the harassment case were Spanish-speaking employees. The employer did “explain” the policy once per year to employees, but, as the court noted, the person responsible for explaining and interpreting the policy for Spanish-speaking employees was the person accused of harassing female employees.8

In addition, the court found that the policy did not provide a meaningful remedy for Spanish-speaking employees because the employees could not make a complaint directly to the persons identified in the policy because those persons did not speak Spanish. An employee would have to supply an interpreter or ask another employee to interpret, which the court found deprived Spanish-speaking employees of their right to confidentiality.

Finally, the court found that the policy was deficient because it did not contain a provision explaining to employees that they could not be retaliated against because of making a complaint of sexual harassment.

Employers with multi-lingual workforces should take steps to make sure that their policies are clearly communicated and effective:

• Translate policies and communicate them in the language(s) spoken by your workforce as required by law.
• If possible, provide a complaint mechanism that identifies an official who speaks the language(s) of your workforce, or explain that an interpreter will be provided, if necessary.

Required Postings and Notices

In addition to the requirement to have a written harassment, discrimination and retaliation prevention policy, employers also have other harassment-related posting and notice requirements:

• California employers must post, in a prominent and accessible location in the workplace, two notices from the Civil Rights Department (CRD), formally known as the Department of Fair Employment and Housing (DFEH):
• “California Law Prohibits Workplace Discrimination and Harassment,” which includes information on the illegality of harassment.
• A transgender rights poster, entitled “The Rights of Employees Who Are Transgender or Gender Nonconforming” (CRD-E04P-ENG).
• Employers of 15 or more employees must post the federal “Know Your Rights: Workplace Discrimination is Illegal” poster in a prominent and accessible location in the workplace.
• You must also distribute to all employees a pamphlet on harassment. This requirement is in addition to the required written policy. You must distribute pamphlets “in a manner that ensures distribution to each employee.” For example, you can include the pamphlet in the employee’s first paycheck or give it to them upon hire.9

At a minimum, the pamphlet must include the following information:10

• The illegality of sexual harassment;
• The definition of sexual harassment under applicable state and federal laws;
• A description of sexual harassment, using examples;
• Your internal complaint process that is available to the employee;
• The legal remedies and complaint process that are available through the CRD;
• Directions on how to contact the CRD; and
• The CRD regulatory protections against retaliation for opposing sexual harassment, filing a complaint with the CRD or participating in an investigation, proceeding or hearing conducted by the CRD.

California law does not specifically require that you provide harassment pamphlets to independent contractors. However, if you are covered by FEHA, it is prudent to provide pamphlets to independent contractors so they will be aware of your reporting and anti-harassment policies.

• CalChamber’s California and Federal Labor Law Poster helps you comply with posting requirements. CalChamber has updated the poster to include the current version of all the required state and federal notices that every California employer must post, including the federal and state anti- harassment posters, and the new transgender rights poster. CalChamber’s Sexual Harassment Hurts Everyone pamphlets are available in packets of 20 in either English or Spanish. To order, call (800) 331-8877, or visit our online store.

Talent Agency Harassment Training and Education Requirement

Under California law, talent agencies are required to provide sexual harassment prevention training and reporting resources to artists they sign for representation.11

The sexual harassment training and education requirements vary based on whether the artist is an adult or a minor.

Talent agencies must provide their adult artists with educational materials on sexual harassment prevention, retaliation and reporting resources, as well as on nutrition and eating disorders. All materials must be provided within 90 days of agreeing to representation by the agency, or agency procurement of an engagement, meeting, or interview, whichever comes first. The education materials:

• Must be in a language the artist understands;
• Must include, at a minimum, the components in the CRD’s Form 185 - Sexual Harassment; and
• May be provided electronically, via Internet website, or other means.

Artists between the ages of 14 and 17, along with their parent or legal guardian, must receive and complete training in sexual harassment prevention, retaliation and reporting resources before they are issued a work permit. The training must be administered by a third-party vendor, on-site, electronically, via Internet website, or other means. It must be in a language understood by that person and must include, at a minimum, the components in the CRD’s Form 185 - Sexual Harassment.

Talent agencies are required to keep records for three years confirming that the educational materials have been made available to artists as required. Additionally, as part of their license renewal process, they must confirm to the Labor Commissioner that they are providing the relevant educational materials. A penalty of $100 per violation can be assessed, unless the Labor Commissioner determines the violation was a clerical error or an inadvertent mistake.

1. Govt. Code sec. 12940(k); 2 CCR sec. 11023