California Mandatory Sexual Harassment and Abusive Conduct
Prevention Training for Supervisors (AB 1825 & AB 2053)
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:
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:
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))
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:
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.
All trainers must have the ability to teach about the following topics:
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)
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.
Employers must keep all of the following training records for at least two years: