Background

For decades, some California schools have been governed by Title IX of the Education Amendments of 1972 (Title IX). Title IX, which was updated in 2020, prohibits sex discrimination in educational institutions that receive federal funding, and identifies a set of procedures for responding to reports of sexual harassment. In addition to Title IX, California institutions of higher education that receive federal funding must now follow SB 493, a new state-wide law addressing sexual harassment.

Effective January 1, 2022, SB 493 requires certain California higher education institutions to enact notice and posting requirements, and implement a fair and impartial process for investigating reports of sexual harassment and violence. SB 493 seeks to clarify the grievance procedure for sexual harassment complaints, including reports of sexual or gender-based violence, and dating or domestic violence. The law applies to all higher education institutions in California that receive state funding, namely campuses of the University of California, the California State University, and California community colleges.

Requirements

SB 493 includes the following requirements for covered institutions:

1. Disseminate a notice of nondiscrimination to each employee, volunteer, and individual or entity who works with the school.

2. Designate an employee to coordinate the school’s responsibilities under SB 493.

3. On the school’s website:

   a) Publish adopted grievance procedures for prompt and equitable resolution of sexual harassment complaints filed by students.

   b) Publish the Title IX coordinator and other relevant officials’ contact information in a prominent place.

4. Provide training to all employees on the identification of sexual harassment, including the person to whom it should be reported.

5. If the institution has on-campus housing, provide annual training for RAs and nonstudent staff on how to handle reports of sexual harassment or sexual violence in a trauma-informed manner.

6. Conduct prompt and equitable investigations into whether alleged sexual misconduct likely occurred, or respond appropriately if an investigation is deemed unnecessary. The institution should respond, as well, in cases where sexual harassment occurred off campus, but might negatively impact a student’s educational experience or performance.

7. Respond to student requests for accommodation based on prior instances of sexual harassment when both parties are subject to the school’s policies, and when failing to offer an accommodation could disrupt a student’s access to education.

Additionally, covered institutions:

1. Cannot require a complainant to sign a voluntary agreement in order to receive remedial measures.

2. Cannot mandate mediation to resolve cases of sexual harassment, and cannot use mediation (even if voluntary) to resolve allegations of sexual violence.

Interplay with Title IX

Covered institutions are required to abide by SB 493 in addition to Title IX, except where the two directly conflict. In such cases, SB 493 indicates that inconsistencies should be resolved in favor of Title IX.

Conclusion

The analysis above is far from exhaustive. We recommend reviewing SB 493’s requirements with counsel, and updating both internal policies and procedures. Doing so will support institutions to maintain compliance, and to ensure transparent reporting and investigative processes when sexual harassment complaints arise.

Author: Kristi Tremble, Senior Counsel

Please contact the team at Maier Law Group if you would like to learn more about our Title IX or workplace investigations practice. We invite you to reach out to us at info@maierlawgroup.com for more information.

This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.