Draft Calif. rule mandates responsive harassment training

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July 13, 2006
By Allen Smith

Harassment training for supervisors must be interactive and trainers must possess the legal or practical experience to field participants' questions, according to the California Fair Employment and Housing Commission's latest draft rule on mandatory harassment training. The draft rule, formally issued June 30 after the incorporation of a few tweaks in response to a June 20 public meeting, also proposes a turnaround time of just two business days to any questions submitted during e-learning.

Draft regulations had been floated by the commission at the end of last year. A second draft was expected much earlier this year, but the commission received a large volume of comments on the first draft, according to Shanti Atkins, president and chief executive officer of ELT, which provides online training with content from Littler Mendelson.

The new draft rule sets out a "very high threshold of expected expertise" for trainers or educators, she said in a July 7 interview with HR News. It specifies that educators or trainers, which includes instructional designers, must have "legal education or practical experience in harassment, discrimination and retaliation training and knowledge of California and federal laws prohibiting unlawful harassment, discrimination and retaliation to be able to answer questions from the participants."

These qualifications also apply to instructional designers responsible for writing, reviewing and/or approving the content of harassment training. But they do not apply to an e-learning designer or technician who is not responsible for training content.

In the draft released last December, the commission said that trainers or educators may use hypotheticals or examples that illustrate the course content and involve the supervisor through questions, problem-solving or tests to ensure the information is understood. The new draft regulations make such interactivity mandatory.

In addition, two hours of harassment training is defined by the latest draft rule as a live or electronic program that takes the supervisor no less than two hours to complete. The minimum duration of a training segment would be no less than half an hour.

Employers with 50 or more employees who conduct business in California and scrambled to provide harassment training by the end of 2005 to satisfy AB 1825's biennial training requirement should take a critical look at how they will conduct training by the end of 2007, according to Atkins. Some employers have systems in place for training managers five years out and beyond, but many employers "threw together in-house training" and will "find themselves flat-footed again" unless they plan ahead, she predicted. She noted that, for planning purposes, 2007 isn't that far off.

Plus, training is required sooner for newly hired, promoted or acquired supervisors, as well as for growing businesses that initially didn't have the minimum number of employees or—as the new draft regulations specify, contractors—but now do.

Fast answers may be unrealistic

Employers should ensure their trainers not only are prepared to make the sessions truly interactive, but in the case of e-learning, are available to answer questions within two business days after a question is asked—another new requirement in the draft rule.

Atkins agreed that training needs to be interactive. Too often she has come across e-learning that has amounted to little more than perfunctory PowerPoint bullets. "There is so much terrible text on screen," she remarked.

But Atkins hopes the commission clarifies that the two-day turnaround means an employer has to respond to and acknowledge e-learning questions within two business days, not necessarily answer or solve all questions within that time. Frequently, participants in harassment training ask questions that are essentially complaints, and it is impossible to resolve a complaint in two business days, she explained.

Complaints arise during harassment training "a lot," Atkins said. Often, training participants will hear about prohibited conduct and exclaim "my supervisor does that all the time. Why don't you do something about it?"

Trainers have to be "very careful" how they handle these types of questions. The trainers need to understand a company's harassment policy and recognize a complaint that is veiled and might escalate. And it is "imperative" that the trainer report the complaint to HR, she added.

The latest draft regulations specifically require that a trainer or educator know how to report and respond to harassment complaints, as well as how to intervene when harassing behavior occurs. A trainer or educator also should understand the effect of harassment on those who are harassed, their co-workers and the workplace.

Reverberations beyond California

Employers that think mandatory harassment training is only for businesses that operate in California are under a false impression, according to Atkins. While violators of A.B. 1825 risk being ordered to provide training, this is far from the biggest worry for employers that do not provide training.

A greater concern is a heightened exposure to punitive damage awards such as those available under Title VII, which applies nationally, she explained. After the Supreme Court's Faragher/Ellerth rulings, training has become a key way for employers to defend themselves from liability.

So, the distinction between required harassment training for employers that conduct business in California and other states (e.g., Connecticut and Maine) with similar mandates vs. employers operating elsewhere is, for Atkins, one without a difference.

Comments on the second draft of the harassment are due to the commission by July 21 to: Ann M. Noel, executive and legal affairs secretary, Fair Employment and Housing Commission, 455 Golden Gate Ave., Suite 10600, San Francisco, CA 94102.

The commission is scheduled to decide whether to adopt the draft regulations at its next public meeting on Aug. 29 at 3737 Main St., Alvarado Room, 207, Riverside, Calif.

Allen Smith, J.D., is SHRM's senior legal editor.

A copy of this article is available online at
http://www.shrm.org/hrnews_published/archives/CMS_017756.asp