California Colleges and Sexual Harassment

Sexual violence has been an issue on many college campuses for quite some time. Anyone – any age, gender, race, or student status – is at risk for violence, harassment, or assault on their college or university campus.

In fact, experts assert that 13 percent of all college students experience rape or sexual assault through violent means. States like California continue to pass legislation in an effort to offer additional protection to college students against sexual violence.

With the hopes of moderating the effects of some of the provisions of the federal Title IX regulations, Governor Gavin Newsom signed Bill SB 493 on September 29, 2020. The new law is set to take effect on January 1, 2022.

What is SB 493 and what does it do?

SB 493 applies to all higher education institutions in California that receive state funding. There are certain responsibilities that SB 493 requires for higher institutions in regard to sexual harassment. These responsibilities include:

• Issuing a notice of nondiscrimination to each employee, volunteer, and individual contracted with the institution.
• Identifying at least one employee of the institution to accommodate efforts to comply with the law.
• Adopting rules and procedures to prevent sexual harassment.
• Adopting and publishing grievance procedures regarding the prompt and equitable resolution of sexual harassment complaints on the company’s website.
• Publishing the name, title, and contact information of the Title IX coordinator or another employee responsible for coordinating the institution’s efforts to investigate complaints or execute corrective measures.

SB 493 also includes additional civil rights protections for students, some of which may be in conflict with Title IX grievance procedures. It is important to speak with an experienced attorney first if you are considering filing a sexual harassment claim here in California.

How does SB 493 broaden the definition of sexual harassment?

Under existing California law, SB 493 amends the definition of sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature made from someone in a work or educational setting, under certain conditions.

These conditions include:

• Implicitly or explicitly making a submission of the conduct a term of the condition of the individual’s employment or academic status.
• Using the submission or rejection of the conduct as the basis of employment or academic decisions in reference to the individual.
• Using the conduct as the sole purpose or effect of having a negative impact on the individual’s work or academic performance, or creating an intimidating, hostile, or offensive work or educational environment.
• Using the submission or rejection of the conduct by the individual as the basis for any decision affecting the individual in regard to awards, benefits, services, honors, programs, or activities.

California’s definition of sexual harassment is broader than the federal definition of sexual harassment. Due to the broader definition, California has also included incidents of sexual battery, sexual violence, and sexual exploitation. Therefore, it is up to California institutions to ensure that their policies reflect the expanded definition of sexual harassment and that the additional sexual harassment grievance procedures apply to all the incidents that fall within the broader definition. This means that California institutions will be allowed to charge with two different definitions of sexual harassment in each case where SB 493 and the federal Title IX regulations are applicable.

How does SB 493 handle mandatory reporters?

SB 493 also identifies which institutional employees are assigned as mandatory reporters of sexual harassment. The state law has accomplished this task by incorporating a definition of a “Responsible Employee,” along with assigned personnel. Some of the positions assigned as “Responsible Employees” include the Title IX coordinator or other coordinator assigned to comply with the institution’s responsibilities, residential advisors, housing directors, athletic directors, student life directors, study abroad program directors, coaches of any student athletic or academic activity, and faculty and associate faculty, teachers, or instructors.

In addition to assigning “Responsible Employees,” there are some professionals who are excluded from reporting obligations. Professionals such as therapists, victim advocates, University of California Center for Advocacy, Resources, and Education (CARE) director, California State University victim advocate, or any similar position with similar responsibilities. These positions are chosen for their responsibility of maintaining confidentiality in a professional capacity. The definition of “Responsible Employee” blends the concepts of the mandated reporter and “Official with Authority” from the federal Title IX regulations.

How does SB 493 revitalize the “constructive notice” concept for California institutions?

The Title IX regulations use an actual notice standard, which is a required notice given to the Title IX Coordinator or an Official with Authority. Drifting away from this standard, SB 493 requires that an institution take additional steps to investigate possible policy violations once the institution has actual notice or contains a constructive notice about possible incidents of sexual harassment. This difference establishes a broader duty for California institutions, with a combination of actionable enforcement standards and private rights of action.

What are the jurisdiction requirements for SB 493?

One of the benefits of SB 493 is that it allows for a much broader jurisdictional scope compared to Title IX’s narrow scope. With Title IX, jurisdiction applies only to the incidents of sexual harassment that were defined by the federal definition and occurred within the education program or activity.

Jurisdiction with SB 493, on the other hand, applies to incidents of sexual harassment that happen within or outside of the education or academic activity, on-campus or off-campus, whether the incident contributes to a hostile educational environment or interferes with a student’s access to education. This broader range of jurisdiction creates situations where a formal complaint can be dismissed under Title IX, but jurisdiction can remain under California’s SB 493.

At Taylor & Ring, talk to our trusted attorneys if you have experienced sexual harassment or assault on campus. We represent clients throughout the Los Angeles area. Contact our experienced lawyers today by calling 310-776-6390 or by submitting a contact form.