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SEXUAL HARASSMENT TRAINING IN CALIFORNIA Presented by Ann M. Noel Executive & Legal Affairs Secretary California Fair Employment & Housing Commission What is AB 1825? AB 1825 is a California bill (codified at Government Code section 12950.1) which mandates:

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SEXUAL HARASSMENT TRAINING IN CALIFORNIA

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SEXUAL HARASSMENT TRAINING IN CALIFORNIA

Presented by Ann M. Noel

Executive & Legal Affairs Secretary

California Fair Employment & Housing Commission


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What is AB 1825?

  • AB 1825 is a California bill (codified at Government Code section 12950.1) which mandates:

    • all California employers with 50 or more employees

    • must provide two hours of sexual harassment prevention training

    • to their supervisors and managers

    • every two years, starting in 2005.


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New Regulations Interpreting AB 1825

  • The California Fair Employment and Housing Commission has recently promulgated new regulations interpreting AB 1825. These regulations went into effect August 17, 2007.

  • Government Code section 12950.1 and the new regulations can be found on the Commission’s website at www.fehc.ca.gov.


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The California Fair Employment and Housing Commission

  • The Fair Employment and Housing Commission enforces California civil rights laws regarding discrimination in employment, housing, and public accommodations; pregnancy disability leave; family and medical leave; and hate violence.

  • The Commission engages in five primary activities: administrative adjudication; mediations, regulations; legislation; and public information and training.


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The Department of Fair Employment and Housing

  • The Department of Fair Employment and Housing (DFEH), accepts complaints of discrimination, investigates those complaints, issues accusations, and prosecutes those cases both before the Fair Employment and Housing Commission and in court.


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DFEH Discovery Question #1

  • As part of its routine investigation of any complaints filed, the DFEH now asks every employer subject to AB 1825 in every employment discrimination case whether it has provided its supervisors sexual harassment training.


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Which Employers Are Covered?

  • All employers doing business in California with 50 or more employees or contractors

    • working each day in any 20 consecutive weeks in the current calendar year or preceding calendar year.

    • The employees/contractors need not work at the same location or all work or reside in California.

  • All state and local municipalities, regardless of the number of employees.


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Which supervisors of a multi-state employer need to be trained?

  • Only those supervisors located in California need to be trained.


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Who is qualified to deliver training?

  • Three categories of persons are qualified to deliver AB 1825-compliant training:

  • Attorneys

  • Professors or instructors

  • Human Resource Professionals or Harassment Prevention Consultants

  • Note that for each category, the Commission has said that the trainers need to have two years of experience.


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Attorneys

  • “Attorneys” admitted for two or more years to the bar of any state in the United States whose practice includes employment law under the Fair Employment and Housing Act and/or its federal equivalent, Title VII of the federal Civil Rights Act of 1964.


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Professors or Instructors

  • “Professors or instructors” in law schools, colleges or universities with 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.


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Human Resource Professionals or Harassment Prevention Consultants

  • “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:


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Human Resource Professionals or Harassment Prevention Consultants

  • designing or conducting discrimination, retaliation and sexual harassment prevention training;

  • responding to sexual harassment complaints or other discrimination complaints;

  • conducting investigations of sexual harassment complaints; or

  • advising employers or employees regarding discrimination, retaliation and sexual harassment prevention


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Keep in Mind . . .

  • “Human resource professionals” and “harassment prevention consultants” do not have to have experience in all of the activities listed above, as long as they have two or more years experience in at least one of the activities.


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Team Training

  • Individuals who do not meet the qualifications of a trainer because they lack two years of experience may team teach with a trainer 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.


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Minimum Prevention Steps for Employers

  • 1. Provide AB 1825-compliant sexual harassment training.


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Minimum Prevention Steps for Employers

  • 2. Create an anti-harassment policy and train all employees about that policy.


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Minimum Prevention Steps for Employers

  • 3. Distribute an information sheet to all employees about sexual harassment. Employers can use the information sheet developed by DFEH, numbered DFEH-185, and available on its website, at http://www.dfeh.ca.gov/Publications/DFEH%20185.pdf, or develop a comparable sheet on their own.


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Minimum Prevention Steps for Employers

  • 4. Post a copy of the Department of Fair Employment and Housing’s anti-harassment poster, DFEH-162, which can be downloaded from DFEH’s website, at

  • http://www.dfeh.ca.gov/Publications/DFEH%20162.pdf.


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What are acceptable types of training?

  • The Commission’s new regulations provide that there are three types of acceptable training:

  • classroom training,

  • web-based seminars, called “webinars,” and

  • online, computer-based training, called “e-learning.”


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Each method of training must:

  • be interactive,

  • challenge the trainee with questions that assess learning,

  • provide skill-building activities that assess the supervisor’s application and understanding of content learned,

  • provide numerous hypothetical scenarios about harassment, and

  • each hypothetical must have one or more discussion questions so that supervisors remain engaged in the training.


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Classroom Training

  • Classroom training is in-person, trainer-instruction, the content is both created and provided to a supervisor by a trainer.

  • The training must be in a setting removed from the supervisor’s daily duties.


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E-learning

  • “E-learning” training is individualized, interactive, computer-based training created by a trainer and an instructional designer.

  • The training must provide a hyperlink or directions on how to contact a live trainer available to answer questions.

  • The trainer must provide feedback within two business days.


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Webinars

  • “Webinar” training is an internet-based seminar whose content is created and taught by a trainer and transmitted over the internet or intranet in real time.


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Webinar Requirements

  • Each supervisor who was not physically present in the same room as the trainer must attend the entire training and actively participate in the training’s interactive content.

  • The webinar must provide the supervisors an opportunity to ask questions about the training.

  • The burden is on the employer to document that its supervisors participated in the webinar.


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Two Hour Training Requirement

  • Classroom training and webinars: the actual time that the instructors spend teaching the training must total two hours, excluding breaks.

  • E-learning: the online training must total a minimum of two hours to complete the course.


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Tracking Training

  • An employer can use either an “individual” or a “training year” tracking method.


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Individual Tracking

  • The employer keeps a record that the supervisor has received training on a particular date, for example, August 23, 2007. That supervisor would need to be retrained again by August 22, 2009.

  • This tracking method is useful when an employer trains its supervisors using online training because the computer can track the training.


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Training Year Tracking:

  • The employer tracks its supervisors by providing training to its supervisors in a particular year. The employer then re-trains all of these supervisors in the next training year, two years hence.

  • For example, if an employer trains its supervisors in 2007, it would next retrain these supervisors in 2009.


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Remember, however . . .

  • Newly hired supervisors or individuals who are promoted to be supervisors need to be trained within six months of obtaining supervisory status.

  • The employer can utilize thereafter either of the above two tracking methods to track these new supervisors’ training.


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What if a new supervisor says I received training in my last work place?

  • If the current employer is satisfied that the new supervisor’s last training was AB 1825-compliant, then retraining is not required.

  • This new supervisor would nonetheless be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months.

  • That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training.


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Burden on Current Employer

  • NOTE, the burden of establishing that the prior training was legally compliant with this section is on the current employer.


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AB 1825 Training Learning Objectives

1. To assist California employers to change or to modify workplace behaviors that create or contribute to sexual harassment; and

2. To develop, foster and encourage a set of values in supervisory employees who complete mandated training that will assist them to prevent and effectively respond to sexual harassment incidents.


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Content of AB 1825 Training

  • AB 1825-compliant training must include:


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Definition of Sexual Harassment

  • A definition of sexual harassment under the Fair Employment and Housing Act (“FEHA,” Gov. Code 12900 et seq.) and Title VII of the federal Civil Rights Act of 1964.


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Harassment, Discrimination and Retaliation Law

  • FEHA and Title VII statutory provisions and case law principles concerning the prohibition against and the prevention of unlawful sexual harassment, discrimination and retaliation in employment


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Prohibited Conduct

  • The types of conduct that constitutes sexual harassment.


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Remedies

  • Remedies available for sexual harassment.


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Strategies to Prevent Harassment

  • Strategies to prevent sexual harassment in the workplace.


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Practical Examples

  • “Practical examples,” such as factual scenarios taken from case law, news and media accounts, hypotheticals based on workplace situations and other sources which illustrate sexual harassment, discrimination and retaliation using training modalities such as role plays, case studies and group discussions.


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Limited Confidentiality

  • The limited confidentiality of the complaint process.


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Resources

  • Resources for victims of unlawful sexual harassment, such as to whom they should report any alleged sexual harassment.


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Effective Investigation

  • The employer’s obligation to conduct an effective workplace investigation of a harassment complaint.


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Where Supervisor is Personally Accused:

  • Training on what to do if the supervisor is personally accused of harassment.


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Anti-Harassment Policy

  • The essential elements of an anti-harassment policy and how to utilize it if a harassment complaint is filed.

  • Either the employer’s policy or a sample policy shall be provided to the supervisors.

  • Regardless of whether the employer’s policy is used as part of the training, the employer shall give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of that policy.


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Discretionary Content

  • The training may (but is not required to) provide a definition of and train about other forms of harassment covered by the FEHA and discuss how harassment of an employee can cover more than one basis.


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What Should Certificates of Completion Include?

  • Course Title & Date

  • Length of session

  • Course learning objectives (documenting that AB 1825 course content was followed).

  • Acknowledgement of Completion.

  • Have employee sign and date & give original to HR or some other person the employer designates.


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AB 1825 Training Completed Before the Effective Date of FEHC Regs

  • An employer who has made a substantial, good faith effort to comply with AB 1825 by completing supervisor training prior to August 17, 2007, is deemed to be in compliance with AB 1825-required training as though it had been done under the Commission’s regulations.


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Tips for Finding a Good Trainer & Training Program

  • Look at whether you have:

    • an AB 1825-compliant trainer, and

    • an AB 1825-compliant training.


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Selecting a Qualified Trainer

  • Is your trainer qualified, with two or more years’ experience?

  • For an in-house trainer: does your HR professional have sufficient experience to answer your supervisors’ questions?

  • For outside trainers: who else has used your trainer in the past? Ask for references.

  • How long has the trainer been in business? What is the professional reputation of your trainer?


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Selecting an Effective Training Program

  • Will the training take two hours, excluding breaks?

  • What protections are built in to prevent the trainees from leaving early, diminishing the screen (for a webinar), or “clicking-through” for e-learning?

  • Does the course outline cover the content detailed in the Commission’s regulations?

  • Will the training also include training about your company’s anti-harassment policy or will someone in your company, such as one of your HR professionals, provide that additional training.


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Selecting an Effective Training Program, cont’d

  • Can you preview the training?

  • Are you engaged when you take the training and do you think that your supervisory employees will be also?

  • Does the training recite case law or give great examples to illustrate legal principles?

  • Is the training interactive?


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Selecting an Effective Training Program, cont’d

  • Relevant role plays for your work force?

  • Does the training give your employees the skills they will need?


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Consequences for Failure to Train

  • AB 1825 provides no awards of damages for failure to provide two hours of sexual harassment training to supervisors and managers.

  • BUT there are potentially expensive and disruptive consequences for employers who fail to train their supervisors as required by law.


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Consequence #1: Liability

  • Liability for breach of employer’s duty to “take all reasonable steps to prevent harassment from occurring.” (Gov. Code § 12940, subds. (j) & (k).)


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Consequence # 2: Increased Damages

  • Providing sexual harassment training can limit damages for employers. (State Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026.)


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Moral of the Story . . .

  • Providing effective sexual harassment training is critical for limiting potentially costly awards in sexual harassment cases.


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Benefits of Training

  • Effective training can:

    • Reduce incidents of sexual harassment.

    • Give supervisors skills to prevent harassment, to identify inappropriate behavior early before it escalates to sexual harassment, and to identify incidents of sexual harassment.

    • Permit informal resolution of sexual harassment complaints, thus avoiding costly, disruptive litigation.

    • Create a climate of respect in the workplace.


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Legal Disclaimer

  • This power point is not intended to be legal advice but is a guide to help you understand the regulations.

  • For definitive answers to an employer’s responsibilities to provide sexual harassment training and education, consult:

  • The FEHA (Gov. Code § 12900 et seq.)

  • AB 1825 (Gov. Code § 12950.1), and

  • The FEHC’s regulations interpreting AB 1825.


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