While overall sexual harassment complaints have ebbed since the start of the COVID-19 pandemic and have fallen below their post-#MeToo movement highs, jury awards continue rising.
Employers who receive a complaint about workplace sexual harassment need to take immediate steps to investigate the matter and take remedial action when warranted. But the best way to prevent sexual harassment from occurring in the first place is by training employees on a regular basis.
For California employers, sexual harassment prevention training is mandatory. Employers of five or more staff (full- and part-time) must provide such training to all employees every two years:
- Supervisors must receive two hours of training.
- All other employees — including those working in other states, temporary and seasonal staff — must receive one hour of training.
Employees should be trained within 30 days of being hired and then every two years after that during company-wide training sessions.
Contents of training
Under California law and Fair Employment and Housing Administration regulations, the training must at a minimum cover the following:
- Definitions of sexual harassment under state law.
- Sexual harassment case-law principles.
- The types of conduct that constitute harassment.
- Preventing harassment of lesbian, gay, bisexual and transgender employees — as well as those who are perceived as such.
- Preventing abusive conduct.
- Legal remedies available to victims of workplace harassment, and the potential liability for employers and individuals who are accused of harassment or failing to prevent it.
- Harassment prevention strategies.
- A supervisor’s personal obligation to report any harassment, discrimination or retaliation immediately after they become aware.
- Real case or hypothetical examples of harassment. This can be done through videos with actors, role playing, case studies, group discussions, engaging literature, and other methods.
- That complaints are to be kept confidential by the employer during the complaint and investigatory period.
- To whom workers should report harassment, as well as other channels for reporting it, like a hotline or special e-mail address.
- Steps the employer may take to address harassing behavior, including investigating the complaint thoroughly.
- What a supervisor should do if accused of harassment.
Acceptable types of training
There are basically three training types:
- Classroom training — An in-person session conducted by a trainer in a setting that is away from the workers’ typical workspace.
- E-learning training — This allows your employees to participate in the training on their time. These are computer-based, interactive training programs that must include a hyperlink or directions on how to contact a live trainer, who must answer questions within two business days.
The trainer has to keep a record of all questions they receive and their answers for two years after receiving the query.
- Webinars — Unlike e-learning, the webinar is conducted live over the internet in real time with employees and supervisors tuning in from a computer or other device. Like an in-person session, the employees and supervisors must be able to ask questions and have them answered.
The employer must keep a copy of the webinar proceedings for two years, including all written material used in the session as well as questions and responses.
- Other “effective interactive training” — This could include a hybrid presentation model that uses audio, video or computer technology during any of the three above methods. The training must meet regulatory requirements, like the other types.
The next step
As a California employer, if you have more than five employees you should already be doing this.
However, if you are a smaller firm that has now grown to the point that it is covered by the law, you’ll need to lay the groundwork to start holding sexual harassment training for your supervisors and staff.
Employers who fail to train their staff can be subject to fines, but moreover training can help prevent a scourge that has wrecked many companies who let sexual harassment continue under their watch. The financial consequences can be devastating.
You should also purchase employment practices liability insurance, which can pay for legal costs, settlements and judgments.