California’s Fair Employment and Housing Act (FEHA) makes sexual harassment in the workplace illegal. Under the law, employers have an affirmative duty to take reasonable steps to prevent harassment from occurring and to promptly correct harassing conduct. In addition, employers are responsible for taking certain specified measures to ensure a workplace that is free from sexual harassment. Since 2005, one of these measures has been mandatory sexual harassment training.
Initially, the sexual harassment training mandate applied only to employers with 50 or more employees and it required that training be provided only to supervisory employees. Employers were required to provide supervisory employees with two hours of sexual harassment training every two years. Employers were not required to provide any sexual harassment training to rank-and-file employees. That’s about to change.
What are the new training requirements?
Last year, the FEHA was amended by SB 1343, expanding employers’ sexual harassment training requirements. As amended, the law requires employers with five or more employees to provide at least (1) two hours of sexual harassment prevention training to all supervisory employees and (2) one hour of sexual harassment prevention training to all non-supervisory employees. The training must be provided once every two years. For existing employees, the first round of training must be completed by January 1, 2020. For new hires or employees promoted to supervisor, training must be completed within six months of assuming the position. For seasonal and temporary employees, or any employee that is hired to work for less than six months, the training must be provided within 30 days of hire or 100 hours worked, whichever occurs first.
What training must be provided?
Employers must provide sexual harassment prevention training in a classroom setting, through interactive E-learning, or through a live webinar. E-learning training must provide instructions on how to contact a trainer who can answer questions within two business days.
Any training must explain:
- The definition of sexual harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964;
- The statutes and case law prohibiting and preventing sexual harassment;
- The types of conduct that can be sexual harassment;
- The remedies available for victims of sexual harassment;
- Strategies to prevent sexual harassment;
- Supervisors’ obligation to report harassment;
- Practical examples of harassment;
- The limited confidentiality of the complaint process;
- Resources for victims of sexual harassment, including to whom they should report it;
- How employers must correct harassing behavior;
- What to do if a supervisor is personally accused of harassment;
- The elements of an effective anti-harassment policy and how to use it;
- “Abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and
- Discuss harassment based on gender identity, gender expression, and sexual orientation, with practical examples of harassment based on gender identity, gender expression, and sexual orientation.
Finally, any training must include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.
The law requires the California Department of Fair Employment and Housing (DFEH) to develop an online tool that will allow employees who have completed sexual harassment training to save electronically and print a certificate of completion. The DFEH is also required to make online sexual harassment training courses for supervisory and non-supervisory employees available on its website, which are expected by late 2019.
Is there anything else must employers do?
In addition to the above training requirements, employers are required to:
- Keep documentation of the training it has provided its employees for two years, as specified in 2 CCR § 11024(b);
- Develop and distribute a harassment, discrimination and retaliation prevention policy, as specified in 2 CCR § 11023;
- Post the DFEH Workplace Discrimination and Harassment notice, which is included on our California All-On-One™ Poster (Govt. Code, 12950(a)); and
- Distribute the DFEH’s Sexual Harassment Pamphlet or an equivalent writing. (Govt. Code, 12950(b)).
Employers still have plenty of time to provide sexual harassment training if they begin planning right away. Begin by checking staffing schedules, determining the best training method and locating a third-party provider that is qualified to conduct training, if necessary. For more information, visit the DFEH’s Resources for Employers webpage.