Most states only have legal requirements for sexual harassment prevention training for government employees, however, there are some states that expand that coverage to include employees that work in the private sector as well. In the wake of the #MeToo movement, California state laws SB 1343 and SB 778 were passed in 2018 to expand workplace training requirements regarding sexual harassment. All employers who have at least five employees must provide training on sexual harassment prevention to all employees. The law requires the training be completed within six months of being hired or promoted to a supervisory position and undergone every two years. Those in supervisory positions must undergo two hours of training and those in non-supervisory positions must undergo one hour.
What is Sexual Harassment in the Workplace?
Workplace sexual harassment is defined as discrimination based on sex. This is a general definition that encompasses a broad array of situations. Furthermore, while the harassment is sexual in nature, it does not need to be motivated by sexual desire in order to qualify. This clarification was added to the definition in the Fair Employment and Housing Act with SB 292 in 2013.
Why is Sexual Harassment Training Needed?
Sexual harassment training is not just needed, it is now a mandatory measure designed to educate and deter sexual harassment in the workplace. There are several laws at both state and federal levels that are being put into place to reduce the occurrence of workplace sexual harassment. Employers are now required to provide a work environment free of discriminatory harassment. If an employee is sexually harassed in the workplace, they may hold their employers responsible and open a sexual harassment claim against them. It is in the best interest of the company as well as the employees that everyone receive proper training to prevent sexual harassment in the workplace.
Sexual Harassment Training Objectives
Government Code section 12950.1 outlined sexual harassment prevention training objectives as:
- Helping employers in California alter behaviors in the workplace that lead to sexual harassment as defined by state and federal law.
- Informing those undergoing training about the negative consequences of sexual harassment and abusive conduct within the workplace.
- Creating and nurturing the values needed for supervisory workers to not only appropriately respond to and correct actions of sexual harassment in the workplace, but also to prevent these incidents from occurring.
Sexual Harassment Training Laws
In addition to the federal Civil Rights Act and the California state Fair Employment and Housing Act, there have been several bills that strengthened rules and regulations against sexual harassment in the workplace.
AB 1825 – Enacted in 2005, this bill mandates that employers in California with 50 or more employees, including part time workers, contractors, and out of state workers, must provide sexual harassment prevention training to supervisory staff every two years.
AB 2053 – Enacted in 2015, this bill added training against abusive conduct to mandatory training requirements of AB 1825.
FEHA Update – In 2016, revisions were made in order to widen and clarify protections for employees, actions employers are expected to take, and requirements for training.
SB 396 – Enacted in 2018, this bill added sexual orientation and gender representation to the harassment prevention training requirements.
SB 1343 – Enacted in 2019, this bill mandates that employers in California who have five or more employees must provide non-supervisory staff with one hour of sexual harassment prevention training every two years and supervisory staff with two hours every two years. The law gave employers one year to provide the first training session to all employees on staff. New hires must receive their first training session within the first six months of employment.
Sexual Harassment Training Requirements
All employers in the state of California have a duty and responsibility to reduce and prevent incidents of sexual harassment in the workplace.
Train Supervisors and Employees
In the state of California, when an employer has at least five employees, they must provide supervisory personnel with two hours of sexual harassment prevention training every two years. They must also provide nonsupervisory personnel with one hour of sexual harassment prevention training every two years. Permanent workers must be provided with this training within six months of being hired. Seasonal employees set to work less than six months must be provided with harassment prevention training within 30 days or 100 hours worked. Temporary employees obtained through a temp agency are required to be trained by that agency, not their temporary employers.
Acceptable Sexual Harassment Training
There are many different ways that employers may provide the required one or two hour training accepted by the state such as:
Classroom – In person training created and conducted by a training instructor in a removed setting.
E-Learning – Computer based education created by a training instructor and instructional designer. Online training must have contact information provided so the employee can speak with the trainer regarding any questions or assistance needed. Trainers must keep record of all written correspondences for two years.
Webinar – Online seminar created and provided by a live training instructor. Employers must have documented proof of the employees attending and participating. The employees must have the opportunity to ask any questions and receive answers and any other assistance needed. Employers must keep record of the webinar, the materials used, and any questions or additional guidance involved.
Effective Interactive Training – Supplemental audio, video, or other technology that in of itself in insufficient to meet training requirements but can be useful when utilized in combination with the above methods.
Proper training methods should include exercises and quizzes that assess the employee’s knowledge of what they’ve learned. Hypothetical scenarios with relevant discussion questions should also be included. When multiple employees are being trained together, role play, and group discussions can be utilized. In person training should allow time for employees to ask questions and e-learning should include a contact link or information so that employees can submit any questions.
Who is Qualified to Provide Sexual Harassment Training?
Under AB 1825, in order to be qualified, a trainer must be knowledgeable and experienced in preventing harassment, discrimination, and retaliation. Qualified trainers must have formal education and professional experience.
Attorneys may be qualified trainers if they meet the following requirements:
- Have experience practicing employment law regarding Title VII of the Civil Rights Act or the FEHA
- Have practiced in the USA for at least two years
Educators may be qualified trainers if they meet the following requirements:
- Have a postgraduate degree or California state teaching credential
- Have 20 hours of training or two years of experience teaching employment law regarding Title VII of the Civil Rights Act or the FEHA
Human resources personnel and harassment prevention consultants may be qualified trainers if they have at least two years of experience in any of the following:
- Creating or providing training in the prevention of sexual harassment, discrimination, and retaliation
- Responding to complaints regarding sexual harassment and other types of discrimination
- Investigating complaints of sexual harassment
- Providing advice and guidance in the prevention of sexual harassment, discrimination, and retaliation
Qualified trainers are required to be able to teach all of the following:
- How to identify unlawful harassment, discrimination, and retaliation in the workplace as defined by both the FEHA and federal laws
- What steps to take when addressing workplace harassment
- How to report or submit a complaint about harassment
- Obligations and responsibilities of supervisors who are made aware of harassment, discrimination, and/or retaliation
- How to respond to harassment complaints
- Obligations and responsibilities of employers to conduct investigations
- How to identify and avoid retaliation
- What to include in a harassment prevention policy
- The ways in which harassment effects everyone
Those who are considered not qualified due to insufficient experience are permitted to assist qualified trainers with classroom or webinar training sessions on the condition that the trainer is always supervising and available to the attendees.
Sexual Harassment Training Content
Sexual harassment training in California that is in compliance with AB 1825, AB 2053, and the most updated FEHA regulations must include the following:
- The legal definition of sexual harassment as expressed in Title VII and the FEHA
- The principles of federal, state, and case laws
- Actions and behaviors that are considered harassment
- The prevention of harassment of employees who are or are perceived as LGBT
- Abusive conduct prevention
- Strategies to prevent harassment
- Remedy options such as civil action available for victims of harassment
- Resources available for victims of harassment
- The role and extent of limited confidentiality involved in the process of filing a complaint and the subsequent investigation
- Potential liability for perpetrators and employers
- Obligations and responsibilities of supervisors who are made aware of harassment, discrimination, and/or retaliation
- Obligations and responsibilities of employers to conduct investigations
- The steps employers are required to take to correct harassment or abusive behavior
- The steps employers should take if they are accused of committing harassment
- Practical examples of harassment such as real occurrences, hypothetical scenarios, role play, or group discussions
- The elements that should be included in a harassment prevention policy
Adding “Abusive Conduct” to Sexual Harassment Training
While general abusive conduct and bullying are still not considered unlawful harassment in California, the FEHA was updated by AB 2053 in 2015 to add that harassment prevention training must include abusive conduct. The amendment defines abusive conduct as:
“Conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”
Prevention training is expected to include an explanation of the elements of abusive conduct as well as the negative effects it has on everyone in the workplace such as reducing productivity and lowering morale.
Gender Identity Training
Effective in 2018, SB 396 was added on to the FEHA to ensure that employers in California who have fifty or more employes must also include gender identity and expression as well as sexual orientation in their biannually mandated harassment prevention training. Employers are also required to post the updated DFEH sexual harassment training poster pertaining to harassment based on gender identity, gender expression, and sexual orientation. New topics and definitions include:
Gender Expression – The way a person’s appearance and behavior reflect their gender, regardless of the sex and gender assigned to that person at birth.
Gender Identity – The gender a person identifies as, regardless of the sex and gender assigned to that person at birth.
Sex Stereotype – Assumptions made regarding appearance, behavior, and abilities based on myths and stereotypes related to sex and gender.
Retaining Sexual Harassment Training Records
AB 1825 and FEHA regulations require employers to keep employee training records on file for at least two years including:
- Dates
- Names of trainees
- Names of trainers
- Training type
- Sign in sheets
- Written training materials
- Recorded training materials
- Questions received
- Responses provided
- Completion and attendance certificates
Other Ways to Help Maintain a Sexual Harassment Free Workplace
The following actions are all ways employers can help ensure that sexual harassment in the workplace is eliminated.
Establish Policy and Procedure Designed to Eliminate Sexual Harassment in the Workplace
Employers are required by the FEHA to create and enforce a harassment, discrimination, and retaliation prevention policy that meets the following criteria:
- In writing
- Lists all categories protected under the Act
- Specifies that it is illegal for managers, supervisors, coworkers, and third parties to engage in prohibited conduct
- Includes a process for complaints that ensures
- As much confidentiality as possible
- Quick response
- Timely impartial investigations conducted by qualified personnel
- Documentation of progress
- Appropriate remedy options
- Timely resolution
- Includes a way for employees to submit complaints to someone other than their immediate supervisor such as
- Direct contact with company representative such as HR or other authority
- Complaint hotline or submission form
- An ombudsperson
- Contact information for government agencies such as the EEOC
- Requires supervisors to report complaints to company representative such as HR for internal resolution measures
- Specifies that allegations will be investigated quickly, fairly, and thoroughly as to adhere to all parties’ right to due process with evidence based reasonable resolutions
- Specifies that while confidentiality will be kept as much as possible, the investigation may not be completely confidential
- Requires that appropriate measures are taken if an investigation confirms misconduct
- Prohibits any retaliation against any employee filing a complaint or participating in an investigation
Post the Employment Rules Against Sexual Harassment in the Workplace Poster
The official posters ‘California Law Prohibits Workplace Discrimination And Harassment’ as well as ‘Transgender Rights In The Workplace’ must be posted by employers where they can be easily noticed and read by employees.
Distribute Literature
Employers are required to provide their employees with information regarding sexual harassment. They have the option of distributing the official Sexual Harassment Fact Sheet, or creating their own so long as it meets the requirements set out in Government Code section 12950(b). There is no standard for how the document is to be distributed other than that it must be received by every employee.
Employers must also include a breakdown of their discrimination and harassment prevention policies along with an acknowledgement of receipt in any way that guarantees the employee receives and understand the information, such as:
- Hard Copy
- Web Page
- Verbal
Legal Remedies
If an employer does not provide sexual harassment prevention training as required by law, the California Civil Rights Department may get an order to force them to do so. According to the FEHA, not providing sexual harassment prevention training is not sufficient in of itself for establishing liability of an employer in a harassment claim. However, in accordance with AB 1825, providing the prevention training is not a valid defense against sexual harassment claims and does not absolve the employer of liability should harassment occur.
Contact Mesriani Law Group If You Have Been a Victim of Workplace Sexual Harassment
Employers have a responsibility to keep the workplace free of sex based discrimination and harassment. When sexual harassment occurs, the employer is liable if they knew about it or reasonably should have known. Navigating the legal process of addressing sexual harassment can add stress and frustration to an already tumultuous experience. An employment lawyer can help alleviate that by taking on the work and explaining things every step of the way. Our attorneys are experienced, hardworking, and dedicated to helping you get the compensation you deserve. If you have been the victim of workplace sexual harassment, call Mesriani Law Group for a free consultation.
California Sexual Harassment Training FAQs
Which Employers Are Required to Get Sexual Harassment Training?
If a California employer has at least five workers, they must provide those in California with sexual harassment prevention training. While workers outside of California count towards the total number of employees, only those residing in California are required to undergo state mandated training. Workers in other states may be bound by their local labor laws.
When Must New Employees and Supervisors Receive Sexual Harassment Training?
When an employee is hired to a new job or promoted to a supervisory position, the employer has six months to provide them with the mandatory sexual harassment prevention training. Supervisory staff must receive two hours of training and nonsupervisory staff must receive one hour of training. This training must be undergone every two years throughout their employment.
Do Temporary or Seasonal Employees Need Sexual Harassment Training?
Even if an employee is only hired for a temporary or seasonal job, they still must undergo sexual harassment prevention training. For these workers, training must be completed within 30 calendar days or the first 100 hours worked. If the temporary worker is the employee of a staffing agency, it is the agency who is responsible for providing the training, not the temporary employer.
Can Sexual Harassment Training Be Completed Online?
There are many ways in which sexual harassment prevention training can be completed online that is within compliance of legal requirements. One benefit of web based training methods is that they can be paused and completed intermittently so long as it is completed in its entirety.
Do Employees Get Paid for Sexual Harassment Training?
Sexual harassment training in California is required by law to be provided by the employer. Furthermore, the training is not to be conducted during the employees’ personal time. It is meant to be paid training included in employment and the employer is also responsible for any costs required. Employees must be paid for their time and must not be required to pay anything themselves.
