As the mid-point of the year approaches, employers should review their sexual harassment training obligations and ensure compliance, especially with the new law requiring sexual harassment prevention training for all employees by January 1, 2020 for employers with five or more employees. Existing law already requires employers in California with 50 or more workers to provide at least two hours of sexual harassment prevention training to all supervisors. The regulations regarding the training are becoming more and more detailed. Here are five reminders about sexual harassment training and required anti-harassment polices:
1. Employers with 5 or more employees must provide sexual harassment prevention training to all employees (even nonsupervisory employees) by January 1, 2020.
SB 1343 passed in 2018 and requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors. In addition, at least one hour of sexual harassment training is required for all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter.
The bill does require that the Department of Fair Employment and Housing (“DFEH”) is to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and to post the courses on the DFEH’s website. The bill requires the DFEH to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the DFEH website. At this point, the DFEH has not indicated when the training and materials will be available, but check back here throughout the year for updates.
2. Supervisor harassment prevention training must take place at least every two years.
Employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position. All covered employers must provide sexual harassment training and education to each supervisory employee once every two years. In 2015, California required that a portion of the training also address “abusive conduct.”
3. Employers need to develop an anti-harassment policy that includes a complaint procedure.
All employers should have an anti-harassment policy of their own developed and distributed to all employees. Employers are required to develop a harassment, discrimination, and retaliation prevention policy that meets the following requirements:
(1) Is in writing;
(2) Lists all current protected categories covered under the Act;
(3) Indicates that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee comes into contact from engaging in conduct prohibited by the Act;
(4) Creates a complaint process to ensure that complaints receive:
(A) An employer’s designation of confidentiality, to the extent possible;
(B) A timely response;
(C) Impartial and timely investigations by qualified personnel;
(D) Documentation and tracking for reasonable progress;
(E) Appropriate options for remedial actions and resolutions; and
(F) Timely closures.
(5) Provides a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor, including, but not limited to, the following:
(A) Direct communication, either orally or in writing, with a designated company representative, such as a human resources manager, EEO officer, or other supervisor; and/or
(B) A complaint hotline; and/or
(C) Access to an ombudsperson; and/or
(D) Identification of the Department and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints.
(6) Instructs supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can try to resolve the claim internally. Employers with 50 or more employees are required to include this as a topic in mandated sexual harassment prevention training, pursuant to section 11024 of these regulations.
(7) Indicates that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
(8) States that confidentiality will be kept by the employer to the extent possible, but does not indicate that the investigation will be completely confidential.
(9) Indicates that if at the end of the investigation misconduct is found, appropriate remedial measures shall be taken.
(10) Makes clear that employees shall not be exposed to retaliation as a result of lodging a complaint or participating in any workplace investigation.
In addition, employers are required to distribute the pamphlet, Sexual Harassment Is Forbidden by Law (DFEH-185), to all employees. Employers should also routinely discuss the sexual harassment policy with employees at meetings and remind them of the complaint procedures and document these additional steps. This additional training will show that the company is serious about preventing harassment and took affirmative steps to protect its employees.
4. The training must review certain topics.
In order to comply with California law, the training must explain the following topics:
- 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).
- Discuss harassment based on gender identity, gender expression, and sexual orientation, which shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.
5. Trainers conducting the harassment prevention training must meet certain requirements.
A trainer shall be one or more of the following:
- “Attorneys” admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or
- “Human resource professionals” or “harassment prevention consultants” working as employees or independent contractors with a minimum of two or more years of practical experience in one or more of the following: a. designing or conducting discrimination, retaliation and sexual harassment prevention training; b. responding to sexual harassment complaints or other discrimination complaints; c. conducting investigations of sexual harassment complaints; or d. advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or
- “Professors or instructors” in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.
Individuals who do not meet the qualifications of a trainer as an attorney, human resource professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team teach with a trainer, in accordance with 1. through 3. above, in classroom or webinar trainings, provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.