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California Mandatory Sexual Harassment and Abusive Conduct
​Prevention Training for Supervisors (AB 1825 & AB 2053)

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California's Fair Employment and Housing Act (FEHA) and the federal Title VII of the Civil Rights Act of 1964 make sexual harassment illegal in the workplace. California's AB 1825, enacted in 2005, makes certain employer action items and training mandatory. California's AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing "abusive conduct." In 2016, FEHA regulations were revised to clarify and expand the protections, employer actions and training requirements. 

Who is subject to this training? California employers with 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment and abusive conduct to all supervisory employees, and to all new supervisory employees within six months of assuming a supervisory position.  From, all covered employers must provide sexual harassment training and education to each supervisory employee once every two years.  

What are accepted methods of training? State regulations identify the acceptable modes of "​effective interactive training" as the following:

1. 'Classroom' training is in-person, trainer-instruction, whose content is created by a trainer and provided to a supervisor by a trainer, in a setting removed from the supervisor's daily duties.
2. "E-learning' training is individualized, interactive, computer-based training created by a trainer and an instructional designer. An e-learning training shall provide a link or directions on how to contact a trainer who shall be available to answer questions and to provide guidance and assistance about the training within a reasonable period of time after the supervisor asks the question, but no more than two business days after the question is asked. The trainer shall maintain all written questions received, and all written responses or guidance provided, for a period of two years after the date of the response. 
3. '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. An employer utilizing a webinar for its supervisors must document and demonstrate that each supervisor who was not physically present in the same room as the trainer nonetheless attended the entire training and actively participated with the training's interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests, and activities. The webinar must provide the supervisors an opportunity to ask questions, to have them answered and otherwise to seek guidance and assistance. For a period of two years after the date of the webinar, the employer shall maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar, and document all written responses or guidance the trainer provided during the webinar.
4. Other 'effective interactive training' and education includes the use of audio, video or computer technology in conjunction with classroom, webinar and/or e-learning training. These, however, are supplemental tools that cannot, by themselves, fulfill the requirements of this subdivision.
5. For any of the above training methods, the instruction shall include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with one or more discussion questions so that supervisors remain engaged in the training. Examples include pre- or post-training quizzes or tests, small group discussion questions, discussion questions that accompany hypothetical fact scenarios, use of brief scenarios discussed in small groups or by the entire group, or any other learning activity geared towards ensuring interactive participation as well as the ability to apply what is learned to the supervisor's work environment." (§11024(a))

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Regardless of the mode of training, the length must be at least two hours. E-learning providers (and employers that use such products) must be certain that the program takes at least two hours to complete. Each mode of training must provide an opportunity for the attendee to obtain answers to questions within two business days of the training. Obviously, with live classroom training, participants may ask questions during the training session. E-learning training must include a hyperlink or directions on how to contact a live trainer (2 C.C.R. §7288.0(a)(11)(C)). Similarly, webinars must afford attendees an opportunity to participate in the live training discussions and to ask questions. 

What is required to be covered in the training? For any training delivery mode, the instruction must include questions that assess learning, skill-building activities that assess the supervisor's application and understanding of content learned, and numerous hypothetical scenarios about harassment, each with discussion questions so that supervisors remain engaged in training.  

Under AB 1825, and as amended by AB 2053 and the revised FEHA regulations, required sexual harassment training must at the minimum include:

• FEHA and Title VII definitions of unlawful sexual harassment (employers may wish to define and train on other forms of harassment and discrimination).
• Federal and state statutory and case law principles.
• The types of conduct that constitute harassment.
• Available remedies for victims of harassment via civil actions and the potential liability for employers and individuals.
• Harassment prevention strategies.
• Supervisor's personal obligation to report any harassment, discrimination or retaliation immediately on becoming aware.
• Practical illustrative examples of harassment (real cases or hypotheticals) using role plays, case studies, group discussions or other methods.
• An explanation of limited confidentiality during the harassment complaint and investigation process.
• Resources for victims (such as to whom they should report harassment).
• Appropriate remedial steps to correct harassing behavior, including the employer's obligation to effectively investigate harassment.
• What a supervisor should do if accused of harassment.
• Essential elements of an anti-harassment policy including the supervisor's role in the complaint procedure (provide the supervisor with a copy of the company's harassment prevention policy and obtain acknowledgement that he or she has received and read the policy).

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Prevention of abusive conduct should be covered in a meaningful manner: A review of the definition of "abusive conduct" as used in this context (and as defined by Government Code section 12950.1(g)(2)). The training should explain the negative effects that abusive conduct has on the victim of the conduct as well as others in the workplace. The discussion should also include information about the detrimental consequences of this conduct on employers—including a reduction in productivity and morale. The training should specifically discuss the elements of "abusive conduct," including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer's legitimate business interests (including performance standards). Examples of abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. Finally, the training should emphasize that a single act shall not constitute abusive conduct, unless the act is especially severe or egregious. While there is not a specific amount of time or ratio of the training that needs to be dedicated to the prevention of abusive conduct, it should be covered in a meaningful manner. (§11024(c))
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The training may address other forms of harassment and discrimination and must include prevention of abusive conduct as a component. 

Who can conduct the training? Earlier versions of the regulations described qualifications for trainers that could have precluded many experienced HR professionals from providing in-house training. The final regulations simplified the qualifications and broadened the pool of potential trainers. Under the final regulations, qualified trainers can be attorneys, professors or instructors, HR professionals, or harassment prevention consultants. Attorneys must have been admitted to practice in any jurisdiction in the United States for at least two years and have employment law issues related to Title VII of the Civil Rights Act of 1964 or to the FEHA as part of their practices. Professors and educators must have either a postgraduate degree or a California teaching credential and either 20 hours of instruction or two years of experience teaching employment law as it applies to the FEHA or Title VII.  HR professionals or harassment prevention consultants "working as employees or independent contractors must have a minimum of two years of practical experience in one or more of the following: 

• ​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.
• Advising employers or employees regarding discrimination, retaliation and sexual harassment prevention." (§11024(a)) 

Individuals who do not meet the qualifications of a trainer as an attorney, HR professional, harassment prevention consultant, professor or instructor because they lack the requisite years of experience may team-teach with a trainer in classroom or webinar settings provided that the trainer supervises these individuals and that the trainer is available throughout the training session to answer questions from attendees. 
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All trainers must have the ability to teach about the following topics: 

• Identifying unlawful harassment, discriminatory and retaliatory behavior under both the FEHA and federal law.
• Steps to address harassment in the workplace.
• Reporting complaints of harassment.
• Reporting obligation of supervisors when aware of harassment, discrimination or retaliation.
• Responding to complaints of harassment.
• Employer's obligation to conduct an investigation.
• Identifying retaliation and how to avoid it.
• Essential components of a policy against harassment.
• Effect of harassment on the harasser, victims, employers and co-workers. (§11024(a)) 

Abusive Conduct Training Requirement. As of January 1, 2015, amendment AB 2053 requires all California employers subject to the mandatory training requirement under AB 1825 to include a component on preventing "abusive conduct." The amendment did not formally add abusive conduct as a protected category under the FEHA; rather, it amended only the training requirement.

Under the amendment, "abusive conduct" means "conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer's legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person's work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious." (AB 2053)
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Employers must also be sensitive to discussing California's abusive conduct standard without running afoul of National Labor Relations Board (NLRB) decisions under proscribing overbroad, undefined terms that allegedly restrict employees' protected, concerted activity under the National Labor Relations Act (NLRA). Thus, it may be important to distinguish the application of the new California term from the NLRB's case law faulting employer policies prohibiting "abusive" conduct.

Retention of Records. The requirements for sexual harassment prevention training record maintenance fall under both AB 1825 and revised FEHA regulations.
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Employers must keep all of the following training records for at least two years:

• Date of training.
• Names of attendees (the supervisors being trained).
• Names of trainers or training providers.
• Types of training (e.g., classroom, webinar, e-learning).
• Sign-in sheet.
• Copies of all written training materials (e.g., company policies and procedures, handouts, exercises, quizzes).
• Copies of all recorded training materials (e.g., videos, webinars).
• Copies of all written questions received and all written responses or guidance provided during any webinar or e-learning.
• Copies of any certificates provided (certificate of completion or certificate of attendance). (§11024(b))