California's Sexual Harassment Training Law (AB 1825)

The Basics of the Bill (Gov't Code § 12950.1)

AB 1825 (California's sexual harassment training law) made national headlines when it passed in late 2004, mandating sexual harassment training for California supervisors. California's AB 1825 is the first law of its kind to actually detail the requirements for effective compliance training, setting the standard not only for California, but the likely standard for the rest of the country as well.

As detailed below, ELT provides an interactive sexual harassment training course that meets and exceeds the stringent AB 1825 California sexual harassment training law requirements, as well as those detailed under Federal Law and several other states, such as Connecticut and Maine.

The basic provisions of California's AB 1825:

• 50 or More Employees. AB 1825 applies only to organizations that regularly employ 50 or more employees or regularly "receive the services of" 50 or more persons. (Independent contractors and temps are included in the 50+ number.)
• Two Hours of Training Every Two Years. The deadline for the first round of AB 1825 training was December 31, 2005. Thereafter, employers must provide two hours of sexual harassment training to each supervisory employee, every two years.
• New Hires and Promotions. New supervisory employees must be trained within six months of their assumption of a supervisory position, and thereafter, every two years.
• High Quality Training Required. The training mandated by California's AB 1825 must be of a high quality, conducted via "classroom or other effective interactive training" and must include the following topics:
  • Information and practical guidance regarding federal and state statutory laws about sexual harassment.
  • Information about the correction of sexual harassment and the remedies available to victims of sexual harassment.
  • Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
• Failure to Comply Opens the Door to Harassment Lawsuits. A claim that an employer failed to provide AB 1825-mandated sexual harassment training does not automatically result in the liability of an employer for harassment. Plaintiffs will argue, however, that the failure to meet the new training mandates is evidence of an employer's failure to take all reasonable steps to prevent sexual harassment.

Access to the full text of the bill: http://www.leginfo.ca.gov/pub/03-04/bill/asm/ab_1801-1850/ab_1825_bill_20040930_chaptered.html

Final AB 1825 Regulations — July 2007

On July 18, 2007, the Office of Administrative Law (OAL) approved final regulations for AB1825. The regulations become effective on August 17, 2007.

For more information on the regulatory drafting process and access to the text of the sexual harassment training regulations, visit: www.fehc.ca.gov/act/harass.asp.

The purpose of the FEHC regulations is to provide clarity to employers on the specific requirements of the sexual harassment training law, as well as practical guidelines for compliance. To draft the regulations, the FEHC recruited members for the Advisory Committee who could provide excellent guidance and expertise on sexual harassment and discrimination prevention, as well as employment law training.

Individuals from ELT and Littler Mendelson were appointed by the State of California to this Blue Ribbon Advisory Committee. See a detailed summary of the final AB 1825 regulations.

Meeting the Challenges of California AB 1825

Since its creation in 1997, ELT has invested in developing unrivaled expertise in employment law training and created market-ready solutions well in advance of evolving legal requirements. ELT's Workplace Harassment course fully satisfies the requirements of AB 1825 and meets or exceeds training mandates in California and every other state and federal jurisdiction in the country. It's truly a solution for today's training needs.

The Regulations require that individuals who develop training materials ("trainers") meet certain qualifications. Trainers can be: Attorneys admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or Human resource professionals with two or more years practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or Professors and instructors in law schools, colleges or universities who have 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. Employers who develop their own programs, or procure them from outside vendors, must be able to clearly demonstrate the active, hands-on participation of a true sexual harassment-prevention expert. This relates not only to a program's development, but also its ongoing maintenance.

Long Term, Exclusive Relationship with the Nation's Preeminent Employment Law Firm. Quality content and subject expertise has been the focus of ELT's training programs for nearly a decade. ELT was founded by Littler Mendelson, the California-based firm that is the largest employment law firm in the country. The firm remains our exclusive content partner for employment related training. ELT's long-term relationship with Littler gives us access to a "brain trust" of more than 600 employment law specialists and the flexibility to include attorneys in every step of course development, testing and updating. ELT's relationship with Littler also means that our courses use scenarios drawn from real case law, anticipate cutting edge legal issues and always meet or exceed every regulatory and statutory mandate - including those imposed by AB1825 and its final regulations. As a result, our harassment solution can withstand intense legal review. In the event of litigation or a formal administrative proceeding, our ELT and Littler content developers are available for cross examination regarding their legal credentials, their practical experience in workplace sexual harassment and their hands-on involvement in developing ELT course solutions.

 

The Regulations impose heightened interactivity requirements for all courseware, including: "Questions that assess learning;" "Skill-building activities that assess the supervisor's application and understanding of content learning;" and "Numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain measurably engaged in the training." With respect to e-learning, ELT believes that this section of AB 1825 means that it is critical for employers to avoid developing or purchasing programs that involve a one-way "information dump" or excessive amounts of passive reading. Every component of the program should be highly interactive and require the learner to constantly apply knowledge.

Engaging, Effective Educational Design. ELT's Workplace Harassment course first engages learners with story-based educational design that draws them into the story with a real plotline and characters. The course is not merely an online lecture. It is an evolving story that presents learners with real world scenarios and hypotheticals that deliver your message and make sense in today's business environment. Interactive Exercises Reinforce Lessons. Workplace Harassment also reinforces key lessons with interactive questions that must be resolved before learners proceed. In the standard supervisor course, supervisors complete more than 40 interactive questions and activities. This insures that supervisors are engaged - and stay engaged - throughout the experience. Supervisor's Resolve Real Life Situations. In Workplace Harassment, learners also "join the story" through special simulation exercises designed for supervisors. These sections present realistic workplace scenarios and then ask learners to decide how to best resolve them.

 

The Regulations require that every online program must "provide a link to or directions on how to contact a trainer" for questions and guidance."

ELT's "Ask A Question" Link. The Workplace Harassment course provides an "Ask a Question" link which is available throughout the course. The link includes a fully indexed and searchable database of hundreds of frequently asked questions so that supervisors can get immediate and consistent answers to their questions. (Learn more) To address questions that involve an employer's specific policies, or that may concern a complaint, the "Ask A Question" link can also include email links, links to other employee resources, 1-800 Compliance Hotlines, phone numbers and directions to contact appropriate organization leaders. The information in the link appears automatically at the end of the program, and must be acknowledged by learners before they complete the course.

 

The Regulations require employers to cover the elements of their anti-harassment policy and how to handle complaints. The regulations further provide that "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."

ELT's "Policies" Icon. The Workplace Harassment course delivers your anti-harassment policies to supervisors and records individual receipt and acknowledgement. Policies are available throughout the course under the course's "Policies" icon and appear automatically before learners complete the course. ELT's electronic certification screen also asks learners to confirm that they have received and read your policies. All policies available in the course are printable. Supervisors Are Encouraged to Report Potential Problems. Workplace Harassment also reinforces the importance of reporting concerns or questions and understanding the specifics of the employer's complaint procedure. General reporting and investigation procedures are explained and supervisors are consistently advised to report potential sexual harassment problems

 

The Regulations provide that employers must track sexual harassment training for each supervisor using the Individual Tracking Method, the Training Year Method, or a combination of both. Individual Tracking Method - Under this method, an employer can track training for each supervisor measured two years from the date of the completion of the last training for that individual. E.g. Doug receives training on January 15, 2005. Doug must be retrained no later than January 15, 2007. Training Year Tracking Method - Under this method, an employer can designate a "training year" to train some or all of its supervisors, and thereafter, must again retrain these supervisors by the end of the next "training year," two years later, even those newly hired or promoted supervisors who received training the prior year. For more details, see a detailed summary of the final AB 1825 regulations. Employers are also required to keep records of the training provided to supervisors for at least 2 years. The retained record must include: The supervisory employee's name; The training date; The type of training; and The name of the trainer, provider.

ELT's Learning Management System (LMS) allows clients to easily track and report on individual supervisor training records and to schedule appropriate re-training. ELT's easy-to-use LMS can be quickly populated with an employer's user information for its initial training populations. It also gives employers five mandatory identification fields for learner-related information, including user name, password and job title. Finally, employers can further customize tracking features by using up to 10 additional customizable fields, permitting employers to build and run reports that make sense in their work and reporting environments. ELT clients also have access to an invaluable resource - ELT's Implementation Managers. Every ELT client is assigned an Implementation Manager to serve as a single point of contact during course implementation and to support you throughout the term of your agreement. They are always available to answer questions and provide training on how to monitor your program's progress, run reports and best track progress. During the 2005 AB 1825 training year, ELT successfully launched tens of thousands of sexual harassment training sessions per month. We can easily support a significantly higher number. In short, ELT has invested in the technology and human resources to do more than satisfy AB1825. We give you the tools to make program administration easy, reliable and effective.

 

The Regulations confirm the 2-hour training requirements. Two hours of sexual harassment training is "two hours of classroom training, or two hours of Webinar training, or in the case of an e-learning program, a program that takes the supervisor no less than two hours to complete." The Regulations expressly provide, however, that "the training need not be completed in two consecutive hours.... E-learning courses may include bookmarking features."

Timing Options Tailored to Your Workplace. ELT's Workplace Harassment solution is designed to easily meet AB 1825's 2-hour mandate. Pre Timed Audio Version. ELT clients have the option of using an enhanced audio course version that is configured to run in no less than 2 hours. Timer Feature in Audio or Non Audio Course. ELT also offers an optional course timer feature, which tracks how long learners have been in the course. Learners who "complete" the course in less than 2 hours are guided to additional content until the 2-hour requirement is satisfied. Bookmarking. Workplace Harassment also includes convenient bookmarking features that allow your supervisors to log out of the training program, and then return to where they left off.

 

The Regulations make clear that the training required under AB 1825 must extend beyond sexual harassment to other forms of prohibited harassment and must include content on discrimination and retaliation. It can include discussions of "how harassment of an employee can cover more than one basis." These categories include: Race; Religious creed; Color; National origin; Ancestry; Physical disability; Mental disability; Medical condition; Marital status; Sex; Age; and Sexual orientation. Govt. Code § 12940(j). Further, the plain text of AB 1825 is not limited to sexual harassment, and requires that training provide "practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation."

ELT's Workplace Harassment Course Satisfies AB 1825 and Provides Additional Protections under State and Federal Law. Workplace Harassment focuses on sexual harassment issues - but does not stop there. The course goes on to introduce supervisors to other forms of discriminatory conduct which often form the basis of claims and covers the prohibition against retaliation. Workplace Harassment also places a special emphasis on "intersectional discrimination," educating supervisors about how sexual harassment claims often intersect with claims relating to race, religion, disability and age. Intersectional discrimination has been highlighted by the EEOC in its updated 2006 Compliance Manuel as a critical area for employers to address. (Learn More) ELT believes that organizations implementing an AB1825 training program should provide all supervisors and employees with the broadest possible training. It is an effective use of resources, provides the strongest legal protections and makes plain, common sense: California harassment prevention law is not limited to sexual harassment, and requires employers to take "all reasonable steps necessary to prevent discrimination and harassment from occurring." Govt. Code §12940(k). Federal law1 strongly encourages mandatory harassment and discrimination training under all of the "protected categories." AB 1825 and similar statutes in Connecticut and Maine are becoming the standard for workplace training and are likely to serve as models for legislation in other states. Broad-based harassment and discrimination training makes it easier for employers to meet these evolving state and federal requirements.

 

The Regulations provide specific guidance on the type of training that must be provided for supervisors under AB 1825. They do not, however, require employers to create a "California-only" training program or bar employers from including California supervisors in a national program that meets AB 1825 standards for rigorous, comprehensive sexual harassment training.

A Consistent, National Training Program. Many employers were caught off guard when AB 1825 was passed and naturally focused on meeting their immediate training needs in California. With the initial training deadline behind them, many of these employers are now reassessing their national training programs in light of AB 1825. It may be tempting to treat AB 1825's training guidelines as a "California-only" phenomena. This has certainly been encouraged by many training companies that in a race to earn AB 1825 business, quickly created "California versions" of sexual harassment training programs. However, ELT strongly believes that employers should treat AB1825 as a catalyst and benchmark for the comprehensive training that is required across your organization. Such training is required to meet the federal standards, discussed above. Employers may be criticized in court for limiting comprehensive training to California-based supervisors. Indeed, it's easy to imagine savvy plaintiffs' lawyers attacking your training program in cases outside of California by asking: 'Why didn't you give the supervisor in this case the same, comprehensive training that you give your California-based supervisors?' Employers should, wherever possible, speak with a single voice regarding their harassment policies and deliver that message with consistent programming.

Most Common Legal Landmines in Addressing AB 1825 Compliance

1. Training Only on Sexual Harassment, and Excluding Broader Forms of Workplace Harassment
   
   As detailed above, an effective, 50-state compliant training program should go beyond sexual harassment to address other, important protected categories, such as race, religion, disability and age.
   
2. Training Only in California
   
   AB 1825 is a state law that applies to supervisors, but all employers must continue to comply with federal law² which strongly encourages effective harassment training for the entire organization. The US Supreme Court Faragher & Ellerth decisions, as well as the relevant EEOC Guidelines specifically require:
   1. Training on broader workplace harassment (all protected categories - not just sex).
   2. Training for all employees (not just supervisors) on a "periodic" basis. (Periodic is not proactively defined under federal law, but a review of the case law suggests that employers are well advised to train at least every other year - the same as the California requirement.)
   3. Supplementing these robust federal requirements, the US Supreme Court Kolstad decision³ requires additional Title VII training for managers to prevent discrimination in hiring, performance management and terminations.

As a best practice, a consistent, national training program helps to establish valuable legal defenses. As importantly, it sends a consistent message to employees about expected standards of conduct, maximizing behavioral change and risk mitigation.

3. Training Only Managers
   
   Non-supervisory employees in California and beyond need training for four critical reasons:
   
   1. A review of federal case law post the landmark Faragher and Ellerth⁴ decisions suggests that both managers and employees must be trained to successfully establish an affirmative defense to harassment claims brought in federal court.
   2. California Government Code §12940(k) requires employers to take "all reasonable steps necessary to prevent discrimination and harassment from occurring." Basic harassment prevention training for all employees is part of a reasonable step, necessary to prevent workplace harassment and discrimination. This is especially true when an effective e-learning solution makes employee training easy and affordable.
   3. In State Dep't of Health Servs. v. Superior Court⁴, the California Supreme Court held that the Fair Employment and Housing Act ("FEHA") does not allow the federal Faragher/Ellerth defense in harassment claims. Instead, California employers may assert a different defense under the FEHA: the doctrine of avoidable consequences. This defense allows an employer to limit damages by proving that it took appropriate steps to prevent and address harassment.
      
      The Faragher/Ellerth defense spurred many employers across the country to conduct sexual harassment prevention training. Does the rejection of the affirmative defense by the California Supreme Court mean that such training is useless in California? It does not. In fact, employers should draw the opposite conclusion - that extensive harassment training is more important under the broader doctrine of avoidable consequences.
      
      According to State Dep't of Health Servs,. to establish the avoidable consequences defense, a California employer must:
      
      • Show that it adopted appropriate anti-harassment policies and communicated essential information to employees.
      • Ensure a strict prohibition against retaliation for reporting alleged policy violations.
      • Ensure that reporting procedures protect employee confidentiality as much as is practical.
      • "Consistently and firmly" enforce anti-harassment policies.
      None of these factors identified by the Court are limited in scope to supervisors. The Court further stated that in establishing the avoidable consequences defense, potentially relevant evidence includes "anything tending to show that the employer took effective steps" to encourage individuals to report harassment and for the employer to respond effectively. Clearly, this broader directive, in addition to the specific requirements list above, strongly supports training for both employees and managers.
   4. Recent amendments to the Federal Sentencing Guidelines ("FSGs") require "periodic" ethics and compliance training for all managers and employees. Basic ethics and compliance training addresses harassment and discrimination prevention.
      
      For detailed information about training requirements under the FSGs, visit: /solutions/ethics_code_of_conduct/ethics_code_of_conduct_faq.html
4. Delaying Implementation of a Solution that Meets the Regulatory Requirements
   
   While the initial January 2006 training deadline may seem to have just ended, the next cycle of required training is at hand for most organizations.
   
   It is imperative for employers to evaluate their training needs and existing programs now so that:

1. The sexual harassment training provided to supervisors in the 2007 training cycle fully complies with AB 1825, including its regulatory requirements.
2. Newly hired and newly promoted supervisors will receive AB 1825 training that is fully compliant with all statutory and regulatory requirements.
3. Employers needing additional compliance solutions will have sufficient time to evaluate and procure a program - a process that often requires buy-in from multiple constituencies, cannot be completed without significant lead time, and typically takes from 2-6 months. Once a sexual harassment training program is developed or purchased, employers then need to account for the time required to actually roll out and complete the training.

Our Commitment to Updated Training Solutions

Because of the periodic retraining requirement for sexual harassment prevention, ELT is committed to constantly updating and refreshing its solutions. Our clients will always have fresh content for their employees, and a range of training options to choose from. We have recently released an entirely new Workplace Harassment course to add to our curriculum. To view a demo, go to: /solutions/workplace_harassment2/workplace_harassment2.html.

¹Faragher v City of Boca Raton, 118 S Ct 2275 (1998); Burlington Industries, Inc. v Ellerth, 118 S Ct 2257 (1998). Equal Employment Opportunity Commission, Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (6/18/99).

²Supra note #1.

³Kolstad v. American Dental Ass'n, 527U.S. 526 (1999).

⁴31 Cal. 4th 1026 (2003).