Sexual Harassment Training Requirements for California Supervisors (AB1825)
State law requires California employers to provide supervisory employees with 2 hours of interactive sexual harassment training and education every 2 years (CA Govt. Code Sec. 12950.1). The requirement covers employers with 50 or more employees or contractors in any 20 consecutive weeks in the current or preceding calendar year. There is no requirement that the 50 employees or contractors work at the same location or that all work or reside in California.
DFEH revised its regulations for sexual harassment training and education and obtained final approval of the regulations from the California Office of Administrative Law in July 2007 (CA Admin. Code Sec. 7288.0). The revised regulations take effect August 17, 2007.
Employees. Under the DFEH's regulations, the definition of "employee" includes full-time, part-time, and temporary employees.
Supervisory employees. Employers are required to train supervisory employees located in California, but not those who supervise California employees from a location outside the state. Newly hired or promoted supervisors must receive training within 6 months of assuming supervisory responsibilities and every 2 years thereafter.
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According to the FEHA, a supervisor is a person who has the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or who has the responsibility to direct employees, adjust their grievances, or effectively recommend that action. DFEH's regulations specify that attending antiharassment training does not create an inference that an employee is actually a supervisor. Thus, an employer that is unsure of an employee's status should include the employee in the training.
Training format. Training may be provided in a classroom setting with an in-person trainer, through "e-learning" programs, and through online seminars. The content of classroom and online seminar training programs must be created and taught by a trainer--as defined in the regulations. See Trainers in this section. E-learning programs must be created by a trainer and an instructional designer who has expertise in current instructional best practices. An e-learning program must provide a link to a trainer who can answer a trainee's questions within 2 business days. Other types of technology (e.g., audio, video, computer) may be used in conjunction with classroom, online, and e-learning programs.
Training content. The training and education must include information and practical guidance about federal and state provisions on the prohibition against and the prevention and correction of sexual harassment, as well as remedies available for victims of sexual harassment. Other required components include questions that assess learning, "skill-building activities" that assess the supervisor's application and understanding of training content, and numerous hypothetical scenarios that include discussion questions. The training should include practical examples of what is considered sexual harassment, along with instruction about the prevention of harassment, discrimination, and retaliation.
The regulations define "trainers" as:
- Attorneys admitted for 2 or more years to any state bar and whose practice includes employment law under the FEHA and/or Title VII.
- Human resources professionals or harassment prevention consultants working as employees or independent contractors who have 2 or more years practical experience in one of the following:
- Designing or conducting discrimination, retaliation, and sexual harassment prevention training;
- Responding to sexual harassment or other discrimination complaints;
- Conducting investigations of sexual harassment complaints; or
- Advising employers or employees regarding discrimination, retaliation, and sexual harassment prevention
- Professors and instructors in law schools, colleges, or universities who have a postgraduate degree or California teaching credential; and either 20 instruction hours or 2 or more years of experience in a law school, college, or university teaching about employment law under the FEHA and/or Title VII.
Trainers or educators. The training must be conducted by trainers or educators with knowledge and expertise about the subjects required. According to the regulations, to be a trainer or educator, a person must have the training and experience to train supervisors on:
- What constitutes unlawful harassment, discrimination, and retaliation under the FEHA and federal law
- What steps to take when harassing behavior occurs in the workplace
- How to report harassment complaints
- How to respond to a harassment complaint
- The employer's obligation to conduct a workplace investigation of a harassment complaint
- What constitutes retaliation and how to prevent it
- Essential components of an antiharassment policy; and
- The effect of harassment on harassed employees, co-workers, harassers, and employers
Questions and answers. A trainer must be available to answer questions from training participants. This requirement applies to classroom, e-learning, and online seminar training programs. In e-learning programs, after a trainee submits a question through the link provided for that purpose, a trainer must provide an answer within 2 business days.
Training by previous employer. Newly hired employees who received the training required by the law from their previous employer within the prior 2 years need only be given a copy of the new employer's sexual harassment policy in order to comply with California's requirements. However, the new employer is responsible for showing that the prior training met the law's requirements. Given the difficulties involved in proving such compliance, employers may want to include the newly hired supervisory employees in their training and education program within 6 months after being hired.
A claim that the training and education required did not reach a particular individual or individuals does not in and of itself make an employer liable in a suit brought by a present or former employee or applicant alleging sexual harassment. Conversely, an employer's compliance with the requirements does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
The requirements set a minimum threshold, and employers are encouraged to implement more elaborate or frequent training measures.
The FEHA is enforced by DFEH and the Fair Employment and Housing Commission. DFEH is empowered to receive and investigate complaints, to issue subpoenas and interrogatories, to conciliate, to prosecute cases before the Commission, and to take court action to enforce the orders of the Commission.
The Commission is authorized to conduct hearings and issue administrative decisions and to issue regulations interpreting the provisions of the FEHA. If the Commission finds discrimination, it is authorized to order hiring and reinstatement and to award back wages, lost benefits, attorney's fees, and compensatory damages for pain and suffering.
For additional information, contact:
Department of Fair Employment and Housing
2000 O Street, Suite 120
Sacramento, CA 95814-5212
800-884-1684 (toll-free in-state)
Fair Employment and Housing Commission
San Francisco District Office
455 Golden Gate Avenue, Suite 10600
San Francisco, CA 94102-3660
An effective supervisor training program is crucial because a bad supervisor or even a bad decision by an otherwise good supervisor has haunted countless employers, whether it comes in the form of lower employee productivity or employee lawsuits.