S.B. 791 – Required Disclosure of Sexual Harassment Decisions for Certain Postsecondary Applicants

04.05.2024

Effective January 1, 2024, Senate Bill 791 (“S.B. 791”) mandates that the trustees of the California State University (“CSU”) and the governing boards of community college districts require applicants for academic or administrative positions to disclose certain decisions finding that the applicant engaged in sexual harassment. (See Education Code sections 89521 and 87604.5 respectively.) It also requests that the Regents of the University of California (“U.C.”) implement the same requirements (See Educ. Code section 92612.1.)

Under the law, applicants must disclose any “final administrative or judicial decision” issued within seven years (prior to the date of their application) where the applicant was found to have engaged in sexual harassment. Under the law, “sexual harassment” has the same meaning as it does in the Higher Education Act (Educ. Code section 66262.5, subd. (a)) or the Title IX Regulations (Tit. 34, Code of Federal Regulations, Part 106, Section 30).

The Higher Education Act defines sexual harassment as including sexual battery, sexual violence, and sexual exploitation, and other unwelcome sexual advances, requests for sexual favors, and other verbal, visual, or physical conduct of a sexual nature, made by someone from or in the work or educational setting, when (a) Submission to the conduct is explicitly or implicitly made a term or a condition of an individual's employment, academic status, or progress; (b) Submission to, or rejection of, the conduct by the individual is used as the basis of employment or academic decisions affecting the individual; (c) The conduct has the purpose or effect of having a negative impact upon the individual's work or academic performance, or of creating an intimidating, hostile, or offensive work or educational environment or when (d) Submission to, or rejection of, the conduct by the individual is used as the basis for any decision affecting the individual regarding benefits and services, honors, programs, or activities available at or through the educational institution.

The Title IX Regulations, as amended in 2020, define sexual harassment as including sexual assault, dating violence, domestic violence, stalking, or other conduct on the basis of sex when (1) a school employee conditions the provision of an aid, benefit, or service of the school on an individual's participation in unwelcome sexual conduct; or (2) the unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.

“Final judicial decision” means a final court judgment or order finding that an individual engaged in sexual harassment. “Final administrative decision” means a Title IX decisionmaker’s written determination issued after the final investigative report and the subsequent hearing. The definition of “final administrative decision” creates some ambiguity for applicants coming from K-12 agencies, non-educational agencies, the private sector, or other settings where hearings may not be required for determining whether an individual violated sexual harassment policies.

Additionally, S.B. 791 prohibits community college districts and CSUs from asking an applicant to disclose, orally or in writing, information about any final administrative or judicial decision of sexual harassment until the postsecondary educational institution has first determined that the applicant meets the minimum qualifications for the position.  Apart from this prohibition, the law does not otherwise address when in the application process an employer may inquire about sexual harassment findings against an applicant. Practically speaking, this means employers likely may not ask applicants to disclose this information in their initial application, but have discretion when to ask after an applicant has been determined qualified for the position. The law also permits applicants to disclose if they have filed an appeal with the previous employer or, if applicable, with the United States Department of Education.

However, the legislation does not address whether the postsecondary institution has an affirmative obligation to verify an applicant’s statements regarding whether or not a final judicial or administrative decision was made against him/her/them. This creates a potential liability risk where an applicant does not voluntarily disclose a sexual harassment finding against him/her/them. Nor does the legislation address how an educational institution should consider a final administrative or judicial decision finding that an applicant engaged in sexual harassment. Further, it does not address how the educational institution, when determining whether to hire an applicant, should handle an applicant’s notice that they have appealed the prior decision.   

Employing institutions should consider contacting their attorneys or insurance carriers to determine how S.B. 791 may affect their hiring practices or whether their coverage should be adjusted in light of the risks involved with hiring individuals who have disclosed sexual harassment findings against them.

Note also that Education Code 87360 requires that hiring criteria, policies, and procedures for new faculty members be developed and agreed upon jointly by representatives of the governing board, and the academic senate, and approved by the governing board.  Employing institutions should also consider consulting with legal counsel regarding the application of Section 87360 to any contemplated changes in faculty hiring criteria or procedures pursuant to S.B. 791.

Please do not hesitate to contact the authors of this Alert or your usual AALRR counsel with any questions about your obligations under these new laws.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. 

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