Employers should have a comprehensive plan regarding sexual harassment prevention in the workplace, which includes training for all employees. Under current California law, employers with five or more employees are required to provide two hours of sexual harassment prevention training to supervisors and managers and one hour of sexual harassment prevention training to non-supervisory employees. All training must take place in a classroom setting, through interactive E-learning, or a live webinar. If conducted through E-learning, the training must include instructions on how to contact a trainer who can answer questions within two business days.
What is Sexual Harassment
The California Department of Fair Employment and Housing (DFEH) defines sexual harassment as “unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature.” This encompasses many behaviors, including leering, making sexual gestures, using derogatory comments, touching, offering employment benefits in exchange for sexual favors, or threatening retaliatory action after receiving a negative response to sexual advances.
Time for Training
Sexual harassment prevention training must occur once every two years, either from the date of completion of the last training.
For supervisory and managerial employees, training must be done within six months of assuming their position. Similarly, training for new nonsupervisory employees must occur within six months from their date of hire. Seasonal or temporary employees, who are hired for a duration of less than six months, are required to be trained within thirty (30) calendar days from the date of hire or within 100 hours worked, whichever occurs first.
Content of Training
Sexual harassment training programs are required to explain the following:
- The definition of sexual harassment under the Fair Employment and Housing Act (FEHA) and Title VII of the federal Civil Rights Act of 1964 (Title VII);
- 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’ obligations 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;
- The definition of “abusive conduct” under Government Code section 12950.1, subdivision (g)(2); and
- A discussion of harassment based on gender identity, gender expression, and sexual orientation, shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.
Additionally, any training must also include questions that assess learning, skill-building activities to assess understanding and application of content, and hypothetical scenarios about harassment with discussion questions.
Who May Provide Training
Sexual harassment prevention training must be conducted by a qualified trainer. The three types of qualified trainers are:
(1) attorneys, who have been licensed by the State Bar for at least two years and whose practice includes employment law;
(2) human resource professionals or harassment prevention consultants with at least two years of practical experience in designing or conducting training on discrimination, retaliation, and sexual harassment prevention, responding to sexual harassment or other discrimination complaints, investigating sexual harassment complaints, or advising employers or employees about discrimination, retaliation, and sexual harassment prevention; or,
(3) higher education instructors with a post-graduate degree or California teaching credential and either 20 hours of instruction about employment law under the FEHA or Title VII.
California state agencies do not issue licenses or certificates validating a trainer’s qualifications. Therefore, it is important to utilize a qualified trainer from one of the approved categories who meet the DFEH’s standards.
Recordkeeping Requirements of Training
To track compliance, employers are required to keep documentation of the training it has provided its employees for a minimum of two years. The records should include: the names of the employees trained, the date of training, the sign-in sheet, a copy of all certificates of attendance or completion, the type of training, a copy of all written or recorded materials that comprise the training, and the name of the training provider.
If you need to provide your employees with sexual harassment prevention training or have issues related to harassment prevention, contact a Jackson Lewis attorney on how we can assist.