Legal Alert: Finally, Some Clarity – California Department of Fair Employment and Housing Approves Sexual Harassment Training Regulations

Date   Dec 1, 2006
It took nearly a full year, but the California Department of Fair Employment and Housing has finally approved regulations to provide employers with guidance regarding California Government Code Section 12950.1 (“AB 1825”).

It took nearly a full year, but the California Department of Fair Employment and Housing has finally approved regulations to provide employers with guidance regarding California Government Code Section 12950.1 (“AB 1825”).

As we previously reported in our November 2004 California Management Law Update, as of January 1, 2006, all employers with 50 or more employees are required to conduct mandatory sexual harassment training of all supervisors. The training must be at least two hours in length and must cover certain specific topics. Each supervisor must be trained at least every two years, and a newly-hired or newly-promoted supervisor must be trained within six months of assuming supervisory roles.

While the statute provided some information, there were substantial gaps in the legislation, which required significant interpretation and “tea leaf” reading until the regulations were finalized. Many of those questions have now been answered.

The regulations define covered employer as one having 50 or more employees. To determine whether an employer has 50 or more employees, you need to count all full-time and part-time employees, as well as contractors. Additionally, if an employer has had 50 or more employees in 20 or more consecutive weeks in the current or prior year, that employer is required to provide the training. Significantly, not all of the employees must be located in California. So, if an employer has 10 employees in California and 40 employees in other states, that employer must comply with the requirements of the statute and regulations.

Another term that has now been defined is the term “supervisor.” A supervisor, for purposes of this statute, is anyone who has the ability to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or direct them, or adjust grievances or effectively recommend that action. A “supervisor” is one who utilizes independent judgment. Significantly, only supervisors located in California must be trained. Language was proposed to require training of anyone who supervised employees in California, even if the supervisor was not located in California. That language was rejected.

Much was discussed about what form the training must take and who is qualified to conduct the training. The regulations approve live training, e-training, and webinars/webcasts, but dictate certain requirements for each. All of the forms of training must have questions that assess learning, skill-building activities assessing understanding, and numerous hypothetical scenarios with questions.

Live training must be conducted by a “Qualified Trainer” (“QT”). An individual becomes a QT through: (a) formal education and training or substantial experience; and (b) being a “Subject Matter Expert” (“SME”). A SME has either: (a) legal education coupled with practical experience; or (b) substantial practical experience in training in harassment, discrimination and retaliation prevention. If the QT has formal education and training or substantial experience (requirement (a)) but is not a SME (requirement (b)), a SME must be available to answer questions and provide feedback either during the training session or within two business days after the question is asked. All live trainers must be qualified to discuss and provide training regarding what constitutes unlawful harassment, discrimination and retaliation, what steps to take if a complaint is made, how to report sexual harassment, how to respond to a sexual harassment complaint, employers’ obligations to investigate harassment complaints, what constitutes retaliation and how to prevent it, what are the essential components of an antiharassment policy, and how sexual harassment affects the workplace. Additionally, live training must be conducted in a setting removed from the supervisor’s daily duties.

The regulations expressly permit “e-training.” If an employer elects to use an “e-training” program, the program must be developed and approved by qualified trainers or SMEs. If the e-training program is a self-study program, there must be an opportunity for the supervisor to ask questions of a QT while taking the program, and employers must ensure that the supervisor spends at least two hours taking the course.

Another approved method of training consists of webinars or webcasts. If an employer elects to use this type of training, it must ensure that the supervisor takes the entire program, and there must be documentation of active participation during the program, such as interactive content, questions, hypothetical scenarios, etc.

The regulations specify certain subjects that must be covered in the training. Mandatory training subjects include: (a) the legal definition of sexual harassment; (b) statutory provisions; (c) types of conduct constituting harassment; (d) remedies available to harassment victims; (e) strategies to prevent harassment; (f) practical examples; (g) limited confidentiality of the complaint process; (h) resources available to victims of harassment; (i) employer’s obligation to conduct an effective investigation; (j) what to do if the supervisor is personally accused; (k) antiharassment policy elements; (l) how harassment complaints are filed; and (m) how to prevent harassment, discrimination, and retaliation. If an employer so chooses, it may address other forms of harassment as part of the training program.

Because all supervisors must be trained every two years, and within six months of being hired or promoted into a supervisory role, the regulations provide guidelines for how to track the training conducted. The regulations discuss “Training Year Tracking” or TYT. Using the TYT method of tracking, the training employer may designate the “training year” and retrain by the end of the next training year, two years later. Newly hired or promoted supervisors trained within six months of assuming supervisory duties may be included in next group training year, even if that is sooner than two years. Employers can shorten but not lengthen the training year.

It is the employer’s burden to establish and verify that all supervisors are appropriately trained in a timely manner. To verify the training, records must be maintained reflecting the name of supervisor being trained, the date on which the training occurred, the type of training, and the name of the trainer. Training records must be maintained for a minimum of two years.

Most of the questions that have arisen under the sexual harassment training statute were answered by the regulations. While the Office of Administrative Law must still approve these regulations, there is no reason to believe there will be any further delay providing employers with this much-needed guidance.

Employers’ Bottom Line:

Sexual harassment training for supervisors is now the “law of the land” in California. If you have any questions regarding the new regulations or the law mandating sexual harassment training, please contact the Ford & Harrison attorney with whom you usually work or the author of this Alert, Helene Wasserman, a partner in our Los Angeles office, at or 213-237-2403.