Frequently Asked Questions on the Topic of Sexual Harassment
- Is sexual harassment illegal for any size company?
Yes. While the federal anti-harassment statute applies to employers with 15 or more employees, California law prohibiting harassment applies to employers with just one or more employees.
- Which employers are covered by California's A.B. 1825 sexual harassment training requirements?
California’s supervisor sexual harassment training law, A.B. 1825 (Cal. Gov’t Code § 12950.1), applies to all employers engaged in business or enterprise in California that have 50 or more employees (including contractors and temps, and full-time and part-time employees) for each working day in any consecutive 20 week period during the current or prior training year. This is true regardless of where the employees/contractors are located or where the company is headquartered or has most of its employees.
The law also requires all state and local municipalities to provide training, regardless of the number of employees.
- Which employees must be trained under A.B. 1825?
A.B. 1825 mandates training for “supervisory employees” who are located in California. A supervisor is a person who has the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or who has the responsibility to direct employees, adjust their grievances, or effectively recommend that action. It is important to note that the A.B. 1825 regulations specify that attending the training does not create an inference that an employee is actually a supervisor. Thus, the best practice is to include an employee in the training even if the employer that is unsure of that employee’s status as a supervisor.
Note that while covered employers are only required to train supervisors who are located in California, we recommend that employers provide A.B. 1825-compliant training to any supervisor, regardless of location, who supervises employees in California.
- How often must an employer provide A.B. 1825 training to supervisors?
Employers must provide two hours of training once every two years. New supervisors must receive training within six months of their hire or promotion and then once every two years.
- How many hours of A.B. 1825 training must supervisors receive?
A.B. 1825 requires two hours of training every two years. This means two hours of classroom or webinar training or, for e-learning, a program that takes supervisors no less than two hours to complete. The two hours of training do not have to be consecutive. For e-learning programs, there is no minimum duration for a training segment, and the program may incorporate a bookmarking feature that permits supervisors to pause their individual training, as long as the actual e-learning program lasts two hours.
- How is an employer required to track compliance with A.B. 1825?
A.B. 1825 gives employers two options for tracking compliance. Employers can choose one option or a combination of the two:
1) Individual tracking. Employers can track the training requirement for each supervisor, measured two years from the completion date of an individual supervisor’s last training.
2) Training year tracking. Employers may designate a “training year” in which they train some or all of their supervisors and then retrain those supervisors by the end of the next designated training year two years later. For example, an employer could have training years of 2007, 2009, 2011, etc. Even if the 2009 training took place in April, for example, the 2011 training could take place anytime during 2011, up to December 31.
- Are employers covered by A.B. 1825 required to have a policy specifying which training tracking method(s) they have chosen to use?
For the training year method, the A.B. 1825 regulations state that an employer must “designate” a training year. We recommend that employers using a training year method document the designation, in writing. This is particularly important because, under the training year method, it is possible to have more than two years elapse between training sessions — for example, if 2007 was a training year and the employer conducted training in February 2007, the employer should have completed the next training by December 31, 2009. Thus, if questions are raised as to whether the employer has complied with A.B. 1825 frequency requirements, the employer will need evidence that it has elected to use the training year tracking method. Note that an employer using the individual tracking method would not be in compliance with A.B. 1825 if more than two years elapse between training sessions for an individual supervisor. Other A.B. 1825 documentation employers must retain, for two years, includes: the name of the supervisory employee trained, date of training, type of training, and name of training provider.
- For A.B. 1825 webinars and e-learning, does the law require that there be a live person available to answer supervisors' questions?
Webinars, which are conducted over the internet or intranet in real time, must provide supervisors with an opportunity to ask the trainer questions during the course of the webinar. For E-learning programs, supervisors must be provided with a link or directions on how to contact a trainer who can answer questions and provide guidance and assistance about the training; the responses must be provided within a reasonable amount of time after the supervisor asks the question, but no more than two business days after the question is asked. Note that individuals in the employer’s own HR department could qualify as trainers (see below).
The law specifies that a trainer must be one of the following: (1) an attorney admitted for at least two years whose practice includes California and/or federal employment discrimination law; (2) an HR professional or harassment prevention consultant with at least two years of experience in discrimination, retaliation or sexual harassment training, investigation, or advising/consulting; or (3) a professor or instructor with 20 instruction hours or at least two years of experience teaching in a law school, college or university about California and/or federal employment discrimination law.
- When must a California employer distribute the California department of fair employment and housing sexual harassment fact sheet (DFEH 185)?
All California employers must distribute the sexual harassment fact sheet to all employees upon hire. Although not required, it is a good business practice to regularly re-distribute the notice to all employees, although the fact sheet is not a replacement for an employer’s own comprehensive anti-harassment policy and complaint procedure.
Employers may use the fact sheet prepared by the DFEH, or can design their own fact sheet that contains the following information: (1) the illegality of sexual harassment; (2) the definition of sexual harassment under state and federal law; (3) a description of sexual harassment, with examples; (4) the employer’s internal complaint process; (5) the legal remedies and complaint process available through the DFEH and Fair Employment and Housing Commission (FEHC); (6) directions for contacting the DFEH and FEHC; and (7) the protections against retaliation.
- Can an employer be liable for the harassing actions of customers or vendors?
Yes. Under both California and federal anti-harassment laws, an employer can be held liable if certain third parties harass one of its employees and the employer does not do enough to prevent or stop the harassment. Thus, if an employee complains that she is being sexually harassed — whether by a customer, client, vendor, delivery person, a contractor’s employee, or a worker from a temp agency — the employer should take the complaint seriously, investigate immediately, and attempt to prevent any future harassment. Where feasible, consider providing vendors and other non-employee business associates with a brief written policy regarding the ethical conduct and practices you expect to govern the relationship, including a statement specifically prohibiting sexual, racial, and other harassment. This practice can go a long way toward preventing harassment problems in such relationships.
- What are an employer's options when an employee reports a harassment problem but tells the employer that she wants to keep it confidential and does not want an investigation?
Once an employee complains or “expresses concerns” to human resources, a supervisor, or management, the employer has a legal duty to investigate and stop the harassment; inaction could lead to liability. The employer can assure the employee that it will investigate as discreetly as possible and will disclose sensitive information on a need-to-know basis only; however, the employer should never promise to keep the matter completely confidential. The employer can also explain its commitment to a harassment-free workplace, and that an investigation and corrective action is necessary to promote such a workplace. The company should also assure the employee that the company will not retaliate against him/her.
- An employer is always liable for sexual harassment by a supervisor that results in a "tangible employment action." Could something as minor as a schedule change, or perhaps a write-up for performance, be considered a tangible employment action?
Under Title VII of the Civil Rights Act of 1964 the federal anti-harassment law, employers are automatically liable for supervisor sexual harassment that culminates in a tangible employment action. If supervisor harassment did not result in a tangible employment action, an employer may be able to avoid liability if it can demonstrate that it exercised reasonable care to prevent and promptly correct any harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities or to avoid harm otherwise.
Determining what is or is not a “tangible employment action” must be done on a case-by-case basis. Generally, according to the U.S. Equal Employment Opportunity Commission (EEOC), an employment action qualifies as tangible “if it results in a significant change in employment status.” Some common examples include hiring and firing, failure to promote, demotion, undesirable reassignment, a decision causing a significant change in benefits, and compensation decisions. Furthermore, the EEOC takes the position that altering an employee’s duties in a way that blocks opportunity for promotion or salary increases amounts to a tangible employment action, as does significantly changing an employee’s duties in his or her existing job regardless of whether the individual retains the same salary and benefits.
Conversely, an employment action will not reach the threshold of “tangible” if it results in only an insignificant change in employment status. Some typical examples of employment actions that fall into this category include minor schedule changes, reassignment to a comparable office on a different floor, and routine performance evaluations. On the other hand, a schedule change or a performance write-up could be a tangible employment action if it impacts salary, benefits, duties or prestige.
California employers should keep in mind that California law holds employers automatically liable for supervisor sexual harassment, regardless of whether the harassment culminated in a tangible employment action.
- Must an employer fire an alleged harasser, or can we impose other discipline?
It depends. According to the EEOC, an employer should make clear that it will take immediate and appropriate corrective action whenever it determines that harassment has occurred. Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. On the other hand, employers also need to consider that overly punitive measures could subject the employer to legal claims by the harasser such as for wrongful discharge. To balance these competing concerns, it is important that disciplinary measures be proportional to the seriousness of the offense. For example, if the harassment is minor, perhaps involving only a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be sufficient to resolve the problem. But for harassment that is severe or persistent, suspension or discharge may be appropriate. Some other forms of discipline that may be effective, depending on the circumstances, include a strong reprimand, suspension, demotion, or a transfer to a different position. If the employer takes action short of termination, however, it is critical that it diligently follow up to make sure the harassment has stopped. Employers should also consider providing additional training or counseling to the harasser to ensure that he or she understands why the conduct was unacceptable.
- If an employee who has complained about sexual harassment subsequently engages in misconduct, does the law protect this individual from discipline or termination for a specified period of time?
California and federal law protect an employee who complains about sexual harassment from retaliation for having made the complaint. The retaliation protection does not automatically protect the victim from discipline if he or she engages in subsequent misconduct. The problem the employer will have in this situation, however, is that the discipline may appear to be related to the victim’s harassment complaint. If the employer is charged with retaliation, a trier of fact will consider the proximity of the disciplinary action to the harassment complaint, how the employer has handled similar misconduct in the past (for example, was this employee more harshly disciplined than other employees who committed similar offenses), as well as any other evidence suggesting that the adverse action may be retaliatory. Employers are advised to seek legal advice before taking any adverse action against an employee who has recently complained about discrimination or harassment.
Additional sexual harassment resources: