The Facts About California’s AB1825 Sexual Harassment Law

On August 17th, 2007, California’s AB1825 Sexual Harassment law came into effect. AB1825 mandates Sexual Harassment training to all supervisors in the state who work for organizations with 5 or more employees. The law is part of the Fair Employment and Housing Act.  Since the initial law was passed there have been many changes including the inclusion of abusive conduct, protected groups, and LGBTQ training.

California is one of only three states (Connecticut, New York and Maine as well) that require Sexual Harassment Training. This law has different requirements than most states and must be strictly adhered to.

Some of the main points of the law:

• Businesses with over 5 employees must comply with the law.

• All supervisors and managers are required to complete the training every 2 years and within 6 months of hire.

• All non-supervisory employees are required to complete the training every 2 years and with 6 months of hire.

• The training must be 2 hours in length for managers and supervisors and 1-hour in length for non-supervisory employees.

• The training must have an interactive component.

• Employers must track the training given to each employee and keep accurate records.

• The training must be presented by professionals with "knowledge and expertise" in the prevention of harassment, discrimination, and retaliation.

• Failure to provide the training could result in a future lawsuit.

• Businesses with fewer than 5 employees should consider complying with the law.

• Training on Abusive Conduct in the Workplace (workplace bullying) must be included (AB2053)

• Training on California’s protected groups must be included.

• Training on gender identity, gender expression, transitioning, or sexual orientation must be included (SB396)

Businesses with over 5 employees must comply with the law

All businesses with over 5 employees must provide sexual harassment to their supervisors. The law specifically says that businesses who “receive the services of” 5 or more individuals. The number does not simply mean 5 full-time employees. It means that employers must count all full and part-time employees and all independent contractors and temporary workers. If you are close to the 5-employee threshold, it is recommended that you provide the training. It’s always better to be safe than sorry.

All supervisors and managers are required to complete the training every 2 years and within 6 months of hire.

The Fair Employment and Housing Act (which AB1825 is a part of) defines a supervisor as any person with the authority "to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action...if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." The best practice is to err on the side of caution. Use the broadest definition possible when determining which employees should receive the training.

The training must be 2 hours in length for managers and supervisors and 1 hour for non-supervisory employees with an interactive component.

Supervisors must be trained for at least two hours every two years and new supervisors must be trained within six months of hire. The course must include training on Sexual Harassment, discrimination, and retaliation with a particular emphasis on prevention. Federal and state provisions on harassment should be covered as well as remedies available to victims. The training may consist of video or classroom training but must also include an interactive component. This interaction could be role-playing, question and answer sessions or other group activities.

Employers must track the training given to each employee and keep accurate records.

The law allows for either individual tracking or training year tracking. Individual tracking consists of making sure that every employee is trained for 2 hours every 2 years based on the date of the individual’s training. Training year tracking consists of training every supervisory employee by the end of the calendar year every two years. Keep in mind that newly hired supervisors must be trained within 6 months of their date of hire. When using training year tracking make sure that new supervisors join the training the next year after hire to ensure that 2 years does not elapse between trainings.

Tracking is extremely important in the event of a lawsuit. Providing the court with a complete and accurate training record could be essential in preparing an affirmative defense in harassment litigation and could lower the severity of punitive damages and fines in a discrimination claim. Although providing the training does not itself shield a business from litigation, it can mitigate the effects of a legal action.

The training must be presented by professionals with "knowledge and expertise" in the prevention of harassment, discrimination, and retaliation.

Although the law itself does not define exactly who is qualified to conduct the training, The California Fair Employment & Housing Commission issued guidelines defining these professionals. A trainer can be:

• Attorneys specializing in employment law.

• Professors or accredited teachers who have taught employment law in a university setting.

• Human resource professionals or harassment prevention consultants with at least 2 years’ experience.

Failure to provide the training could result in a future lawsuit.

Not providing AB1825 training does not automatically result in employer liability. However, failing to provide the training leaves employers exposed to many potential dangers. In the event of litigation, businesses have a substantially diminished chance of prevailing. This includes harassment litigation and any other type of discrimination claim. The law states that the employer must take all reasonable steps to prevent harassment from occurring. Therefore, a claimant could argue that the business did not take harassment seriously.

Businesses with fewer than 5 employees should consider complying with the law.

Although businesses with fewer than 50 employees do not have to comply with the law voluntary compliance should be strongly considered. Employers in these smaller companies can still be held liable in a sexual harassment claim and providing training will lessen the chance of harassment occurring. And just like in their larger counterparts, a complete and accurate training record is essential to an affirmative defense in litigation.

Although not required under AB1825, training should go beyond Sexual Harassment and include all types of workplace harassment.

The California Fair Employment and Housing Act protects employees from illegal discrimination and harassment in employment based on race, color, religion, gender, pregnancy, sexual orientation, marital status, national origin, ancestry, mental or physical disability, medical condition and age (40 and above). This act applies to any employer with 5 employees or more and the mandate on harassment covers interactions with only two individuals one of which could be an independent contractor. Therefore, expanding training to cover these other aspects of harassment and discrimination is essential to a comprehensive training program.

Training on California’s Protected Groups must be included.

California provides protection from harassment and discrimination for all the federally protected groups and several other specific to California.  These protected groups must be included in the 2-hours of mandatory training.

With the passage of AB2053, abusive conduct training must be included.

Training on the prevention of abusive conduct (workplace bullying) now must be included with mandatory 2-hour sexual harassment training.

SB396 requires training on gender identity, gender expression, transitioning, or sexual orientation.

With the passage of Senate Bill 396, training on the protected status of gender identity, gender expression, transitioning and sexual orientation must be included with the 2-hour course.

For more information, please take a look at one of our California AB1825 Sexual Harassment training programs.