California SB 396: New Law Requires Anti-Harassment Training to Cover Gender Identity and Sexual Orientation


By Carole Walters
Editor at Traliant

The new law applies to organizations with 50 or more employees, and amends the existing sexual harassment training for managers and supervisors, as required by the California Department of Fair Employment and Housing (DFEH). SB 396 also requires employers to display a poster developed by the DFEH on transgender rights in the workplace.

The existing California laws covering sexual harassment training are California AB 1825 and California AB 2053. Under AB 1825, employers must provide supervisors with two hours of training on preventing sexual harassment, every two years. All new supervisory employees must complete training within six months of assuming their new position.  The AB 2053 amendment mandates that education on abusive conduct, or what is commonly known as “bullying,” be included in that training.

Understanding LGBT terminology
An important component in updating anti-harassment training is explaining LGBT terminology, and showing examples of acceptable and unacceptable behavior towards transgender co-workers. While terminology is always evolving, here are a few of the current definitions from the California Fair Employment & Housing Council:

  • Gender expression – refers to a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
  • Gender identity – refers to a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
  • Transgender – refers to 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. A transgender person may or may not identify as “transsexual.”
  • Transitioning – refers to the 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 activities.
  • Sex – refers to, but is not limited to, pregnancy, childbirth, medical conditions related to pregnancy, childbirth, or breastfeeding; gender; gender identity; and gender expression.
  • Sex stereotype – refers to assumptions about a person’s appearance or behavior, or about an individual’s ability or inability to perform certain kinds of work based on a myth, social expectation, or generalization about the individual’s sex.

Use preferred names and pronouns 
In California and some other jurisdictions, laws protecting against gender discrimination require that employers honor requests from employees to identify them by a preferred gender, name or pronoun.  Here are some key guidelines to keep in mind:

  • If an employee requests a new name on a business card or to be called by a different pronoun, employers can easily honor those requests. However, in situations where it’s necessary to meet a legal obligation, such as the issuing of paychecks, employers may use the employee’s gender or legal name as it appears on a government-issued ID.
  • Employers may be liable for failing to use a name or pronoun requested by an employee. If, for example, someone forgets to use the correct pronoun, the employer would not be automatically liable. However, organizations do need to have a plan for addressing name and pronoun change requests, and communicating to managers and employees their responsibility to use the individual’s preferred name or pronoun.
  • With regard to the pronouns themselves, there are a number of different ways individuals may request to be addressed. An employee may wish to change from using she/her/hers to he/him/his, or vice versa. An employee may request to be addressed by gender-neutral pronouns, such as the singular they/them/their or by ze/hir/hirs or by other pronouns. Some employees may request to be addressed by their name only, and by no pronouns at all.

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