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Sexual Harassment Training Requirements Clarified by California Fair Employment & Housing Commission

In these new regulations, the Fair Employment and Housing Commission describes "sexual harassment" as unwelcome or unwanted sexual advances, or visual, verbal or physical conduct of a sexual nature. This definition includes numerous types of offensive behavior. Implementing a program to eliminate sexual harassment in the workplace is not only required by California Law, but is also a pragmatic means of limiting and avoiding damages if harassment should Still occur despite efforts to prevent it.

All employers have a legal obligation to prevent sexual harassment and must take all reasonable steps to prevent discrimination and harassment in the workplace. Information on sexual harassment must be distributed to employees and must include information regarding the illegality of sexual harassment, the definition according to State and Federal laws, the complaint process available to employees both in the workplace and through the Department of Fair Employment and Housing (DFEH), directions on how to contact the DFEH, available legal remedies, and protection against retaliation for filing a complaint.

Employers should ensure that all employees are made aware of the gravity of violations of the sexual harassment policy. Supervisory personnel should be educated regarding their specific responsibilities while employees should be warned against the use of peer pressure in discouraging harassment victims from utilizing the internal complaint procedure and of conduct which could constitute sexual harassment. Training of All Individuals in the Workplace

California State Law mandates that businesses with 50 or more employees are required to provide at least two hours of classroom or other effective interactive training regarding sexual harassment. Any training methods must include questions that assess learning, hypothetical scenarios regarding harassment, skill-building activities that assess the individual's application and understanding of learned content, and discussion questions to ensure that individuals remain engaged in the training.

"Effective interactive training" includes any of the following:

(A) "Classroom" training
In-person, trainer-instruction
Content is created and provided by a trainer
Training is conducted in a setting removed from site of daily duties

(B) "E-learning" training
Individualized, interactive, computer-based training created by trainer and instruction designer

Must provide a link or directions on how to contact the trainer, who must be available to answer questions and provide guidance and assistance on the training within a reasonable amount of time after questions are asked (but no more than two days after)

(C) "Webinar" training
Internet-based seminar whose content is created and taught by trainer and transmitted over the internet or intranet in real time

Employers utilizing the webinar method must document and demonstrate those not physically present in the same room as the trainer attended the entire training and actively participated in the interactive content, discussion questions, hypothetical scenarios, activities, quizzes, or tests

Must provide an opportunity for questions and answers or guidance and assistance

Training required by California Government Code section 12950.1 must include the following learning objectives:

1. To assist California employers in changing or modifying workplace behaviors that create or contribute to "sexual harassment" as defined in California
and Federal law; and
2. To develop, foster, and encourage a set of values in employees who complete required training that will assist them in preventing and effectively responding to occurrences of sexual harassment.

The mandated training must include, but is not limited to:
1. A definition of unlawful sexual harassment as defined under the Fair Employment and Housing Act (FEHA) and Title VII of the Federal Civil Rights Act
of 1964. Additionally, employers may provide a definition and training regarding other forms of harassment as covered by the FEHA, such as harassment
based on race or ethnicity, in order to discuss how harassment of an employee can cover more than one basis.
2. FEHA and Title VII statutory provisions and case law principles relating to the prohibition against and the prevention of unlawful sexual harassment,
discrimination and retaliation in employment.
3. Conduct that constitutes sexual harassment.
4. Remedies available for sexual harassment.
5. Strategies to prevent sexual harassment in the workplace.
6. "Practical examples," such as hypotheticals based on workplace situations, factual scenarios taken from case law, media accounts, or the news, and other
sources which can illustrate sexual harassment, discrimination, and retaliation through activities such as role plays, case studies, and group discussions.
7. The limited confidentiality of the complaint process.
8. Resources for victims of unlawful sexual harassment - i.e. to whom they should report any, alleged sexual harassment.
9. Employer obligation to conduct effective workplace investigation of any harassment complaint; 10. Training on what to do if the supervisor is personally accused of harassment. 11. The essential elements of an anti-harassment policy, and how to use 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 must give each supervisor a copy of its anti-harassment policy and require each supervisor to read and to acknowledge receipt of the policy.

Sexual harassment education and training must be led by qualified individuals. "Trainers" or "educators" considered qualified for conducting effective training includes one or more of the following:

1. Attorneys admitted to the bar of any state in the United States for two or more years whose practice includes employment law under the Fair Employment
and Housing Act and/or Title VII of the Federal Civil Rights Act of 1964.
2. Human Resources 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 areas: (a) designing or conducting discrimination, retaliation, and sexual harassment training, (b) responding to sexual harassment complaints or other discrimination complaints, (c) conducting investigations of sexual harassment complaints, and (d) advising employers or employees regarding discrimination, retaliation, and sexual harassment prevention.
3. Professors or Instructors in law schools, colleges, or universities who have a post-graduate degree in California, a 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.

Complaint Procedure

In the event that a sexual harassment complaint should occur despite all efforts to prevent it, an employer should take immediate and appropriate action upon learning of such behavior. The employer must take effective action to stop any further harassment and minimize the effects of the harassment.

The employer's policy should include:
Fully inform complainant of his/her rights.
Fully and effectively investigate. The investigation must be immediate, thorough, objective, and complete. Any with information on the matter should be interviewed, and a determination must be made and the results communicated to the complainant, to the alleged harasser, and, as appropriate, to all others directly concerned.
If harassment is proven, prompt and effective remedial action must be taken. Appropriate action must be taken against the harasser and communicated to the complainant followed by steps to prevent further harassment. Finally, appropriate action must be taken to redress the complainant's loss, if any.

Russell J. Thomas, Jr. Attorney at Law THOMAS & ASSOCIATES 2172 Dupont Drive, Suite 203 Irvine, California 92612; Tel: (949) 752-0101 Fax: (949) 257-4756 Email: rthomas@rjtlawfirm.com Web: http://www.rjtlawfirm.com

J.D., Harvard Law School, 1967

Specializes in Employment Law and Litigation; Offices in Southern California (Los Angeles and Orange County)

posted by rtszdeiurg @ 3:54 PM