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Steps to Harassment, Discrimination and Retaliation Prevention Compliance Guide

June 17, 2019 2734

Employers in California have a duty to take reasonable steps necessary to prevent and promptly correct discriminatory and harassing conduct. Employers must create a work environment free from prohibited employment practices. Employers must inform employees about their protections against harassment, discrimination and retaliation in the workplace. This is part of the employer’s duty to take all “reasonable steps” to ensure a workplace is free from harassment.

This obligation includes posting and notice requirements, harassment-prevention training and creating harassment-prevention policies. If a harassment-prevention policy is not already part of your written policies, employers are encouraged to develop a policy now.

The steps listed below outline the minimum legal requirements for a harassment prevention policy under California law. Your harassment-prevention policy must be in writing.

1. Develop a policy against discrimination and harassment.

Your Policy Should:

  • Be clear and easy to understand.
  • List all protected classes covered under the Fair Employment and Housing Act.
  • Clearly describe the types of conduct that constitute harassment under state and federal laws.
  • Specify that employees (including unpaid interns, volunteers, individuals in apprenticeship training programs and independent contractors) are protected from discriminatory or harassing conduct from any workplace source, including co-workers, managers and third parties that are in the workplace (for a dental practice this could include outside vendors and patients).
  • Explain that the employee does not need to complain directly to their manager or directly to the harasser. Provide the employee an alternative complaint mechanism, including but not limited to any of the following:
    • Direct oral or written communication with a designated practice representative, such as a manager, another practice representative or attorney.
    • A complaint hotline.
    • Access to an ombudsperson.
    • Identification of the DFEH or the EEOC as additional avenues for lodging complaints.
  • Direct managers to report any complaints of misconduct to a designated representative so that the practice can try to resolve the claim internally.
  • Explain your process for investigating all complaints of misconduct —harassment as well as other prohibited conduct. Indicate that you will conduct a fair, timely and thorough investigation that provides all parties appropriate due process and reaches reasonable conclusions based on the evidence collected.
  • Include a statement that if at the end of the investigation misconduct is found, your practice will take appropriate corrective and remedial measures (which can include discipline and other measures such as future training).
  • State that confidentiality will be kept to the extent possible. However, the policy should not indicate that the investigation will be kept completely confidential.
  • Make clear that employees will not be exposed to retaliation because of making a complaint or participating in an investigation.

2. Promptly and objectively investigate all complains of discrimination or harassment.

You have an obligation not only to prevent harassment but, if an allegation arises, to promptly correct any harassing behavior. Taking such steps can help reduce employer liability.

Your policy should clearly explain your process for raising a harassment claim and provide alternate avenues for raising complaints so that an employee can bypass their manager if, for example, the manager is the one engaging in the harassment.

You are legally required to create a complaint process that ensures that complaints receive:

  • A designation of confidentiality to the extent possible.
  • A timely response.
  • An impartial and timely investigation by qualified personnel.
  • Documentation and tracking for reasonable progress.
  • Appropriate options for remedial actions and resolutions.
  • Timely closure.

3. Address Multilingual Workplaces

Under California law, if your workforce at any facility or establishment contains 10 percent or more of people who speak a language other than English, you must translate your policy into every language spoken by at least 10 percent of the workforce.

Employers with multilingual workforces should take these steps to make sure that anti-harassment policies are clearly communicated and effective:

  • Translate policies and communicate them in the language(s) spoken by your workforce, as required by law.
  • If possible, provide a complaint mechanism that identifies an official who speaks the language(s) of your workforce or explain that an interpreter will be provided if necessary.

​4. Distribute a policy against discrimination and harassment to all employees.

You must distribute your harassment-prevention policy using one or more of the following methods:

  • Print and provide a copy to all employees with an acknowledgment form for the employee to sign and return.
  • Update and distribute the practice’s employee manual.
  • Post the policy where employees congregate in the practice.
  • Provide a copy (hard copy or email) of the policy to each new and existing employee.
  • Any other way that ensures employees receive and understand the policies.

Distribute your anti-harassment policy to all employees, volunteers and unpaid interns. As a good practice, you should distribute the policy to any independent contractors as well.

Regardless of the method of distribution, employers are required to obtain an acknowledgement of receipt and understanding from the employees and keep a copy of the acknowledgement in employees’ personnel records.

5. Employer Notice Obligations

  • You must also distribute to all employees the Department of Fair Employment and Housing (DFEH-185) brochure or an equivalent document. This document describes how employees may contact the DFEH to file a complaint. This requirement is in addition to the required written policy.
  • In addition to distributing the above information on sexual harassment, employers must post the DFEH poster entitled “California Law Prohibits Workplace Discrimination and Harassment” in a prominent and accessible location in the practice. This notice is contained in the Required Poster Set provided by CDA.

6. Training Requirements for Employers

California employers of five or more employees must provide expanded training on sexual harassment prevention to all of their employees by Jan. 1, 2021. 

  • Employers with at least five employees, in order to comply with the training requirements, and provide: (1) at least two hours of sexual harassment prevention training to all managerial employees and (2) at least one hour of sexual harassment prevention training to all nonmanagerial employees.
  • Both part-time and full-time employees must be trained.
  • Employers must provide training every two years at minimum.
  • Training must occur within six months of hire to a nonmanagerial position or promotion to a managerial position (including hiring) as applicable.
  • Newly created businesses with five or more employees or contractors must provide training within six months of the business’ establishment and then every two years thereafter.
  • Full-time, part-time, temporary employees, unpaid interns, unpaid volunteers, and independent contractors must be included toward the minimum count of five employees.
  • The training may be conducted as a group presentation or on an individual basis and may be broken into shorter time segments as long as the two-hour requirement for managerial employees and one-hour requirement for nonmanagerial employees are met.
  • Employees hired after Jan. I, 2021, who received training by a previous employer need only be required to read and acknowledge receipt of the employer’s anti-harassment policy within six months of assuming the new position. The burden of establishing that the prior training was legally compliant with this section is on the current employer.

Seasonal and temporary employee training

Beginning January 1, 2020, employers must provide training to temporary and seasonal employees, or any employee who is hired to work for less than six months. The training must occur within 30 calendar days after the hire date or within 100 hours worked, whichever comes first. In the case of temporary employees employed by an agency (as defined in Section 201.3 of the Labor Code) to perform services for clients, the training must be provided by the agency, not the client.

In lieu of training, employers may obtain a copy of a temporary employee’s current certificate of prior training and track training from that date.

How do I know if my employee is considered a “supervisor” or “manager”?

As defined by Government Code sec. 12926(s)(t), “Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, 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, in connection with the

foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

Types of “effective interactive training”

The harassment prevention training must include information and practical guidance about federal and state sexual harassment laws, including harassment prevention and correction, and remedies that are available to victims. The training must also include a component on the prevention of “abusive conduct,” as well as a component on harassment based on gender identity, gender expression and sexual orientation. Employers can hire third-party companies that are qualified to conduct training under DFEH regulations for either in-person or online training. Employers can satisfy this training by offering classroom training, e-learning or webinars. Before deciding to utilize a company, the employer should verify that its training meets the requirements outlined below.

Classroom training: In-person classroom training that features content created by a trainer. The employees receive the training from a trainer in a setting that is removed from the employees’ daily duties. California law in CCR sec. 11024(a)(9) specifically defines the credentials that a qualified trainer must possess.

E-learning: Individualized, interactive and computer-based training that was created by a trainer and an instructional designer. Employees must have the opportunity through a link or directions on how to ask a trainer questions and receive a response within two business days of asking a question.

Webinar: An internet-based seminar that features content created and taught by a trainer and that is transmitted over the internet in real time. Employers who use a webinar for training must document that each employee who is not physically present in the same room as the trainer attended the training. They must also document that the employee actively participated in the training’s interactive content, discussion questions, hypothetical scenarios, polls, quizzes or tests and activities. Webinars must provide employees with the opportunity to ask questions and receive answers to those questions or otherwise seek guidance and assistance.

Large-group webinar: When using this type of training, the employer must comply with documentation procedures, including:

  • An employer utilizing a webinar for its managerial or non-managerial employees must document and demonstrate each employee who was not physically present in the same room as the trainer 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 an opportunity for all employees to ask questions, to have them answered and otherwise to seek guidance and assistance.
  • 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 for a period of two years after the date of the webinar

The regulations also authorize other effective, interactive training —including audio, video or other computer technology— but only if used along with, and as a supplement to, classroom, webinar or e-learning training.

Trainer Qualifications

The trainer must be one of the following:

  • An attorney who has been admitted for two or more years to the bar of any U.S. state and whose practice includes employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964.
  • A human resources professional or harassment-prevention consultant who has a minimum of two years of practical experience in sexual harassment prevention training, responding to sexual harassment complaints, conducting harassment-complaint investigations and advising employers or employees about discrimination, retaliation and sexual harassment.
  • A professor or instructor at a law school, college or university who has a postgraduate degree or California teaching credential and 20 instruction hours or two or more years of experience teaching employment law under FEHA and/or Title VII of the federal Civil Rights Act of 1964.
  • Anyone who does not meet one of the above categories may team-teach with another individual who meets the requirements.

Additional mandatory qualifications for the trainer include knowledge of and ability to train on the following topics (2 CCR sec. 11024(a)(9)):

  • Legal definition of harassment, discrimination, and retaliation under FEHA and Title VII.
  • “Statutory provisions and case law principles” regarding the prevention of harassment, discrimination and retaliation.
  • Conduct that constitutes unlawful harassment, discrimination, and retaliation.
  • Conduct that constitutes harassment based on gender identity, gender expression, and sexual orientation.
  • Remedies available for unlawful harassment, discrimination, and retaliation.
  • Managers obligations to report EEO issues.
  • Strategies to prevent unlawful harassment, discrimination, and retaliation.
  • “Practical examples,” such as roleplaying, hypotheticals, case studies or group discussions
  • Bystander vs. upstander training.
  • The “limited confidentiality” of the EEO complaint process.
  • Resources for “victims” of EEO violations.
  • The employers obligation to conduct an effective internal investigation of any EEO complaint.
  • Training on what to do if the manger is personally accused of an EEO violation.
  • The essential elements of an EEO policy (the employer must provide the policy to the attendees, who must acknowledge receipt).
  • A review of the definition of “abusive conduct” as used in the context, and the detrimental contingencies of such conduct, including reduced productivity, and moral.

Am I eligible to be a trainer?

There is currently no certification requirement for qualified trainers, and the DFEH is unable to approval for training providers or provide guidance as to whether one meets the qualifications of a trainer. If you believe you meet the requirements, you may choose to offer your services as a trainer. 2 CCR 11024

Record-Keeping

To track compliance, employers must keep documentation for a minimum of two years and be able to provide copies upon request.

The training record must include all of the following minimum information:

  • The name of the employee who received training.
  • The training type and date.
  • The attendance sign-in sheet.
  • A copy of all certificates of attendance or completion issued.
  • A copy of all written or recorded materials that comprise the training.
  • The training provider’s name.

In addition to the above, specific documentation requirements for both trainers and employers are mandated for e-learning and webinar training:

  • E-learning: The trainer must maintain all written questions received and all written responses or guidance provided for a period of two years after the date of the response.
  • Webinars: The employer must maintain a copy of the webinar, all written materials used by the trainer and all written questions submitted during the webinar. The employer must also document all written responses or guidance the trainer provided during the webinar.

Government Obligations

The Department of Fair Employment and Housing must develop or obtain two online training courses on the prevention of sexual harassment in the workplace in accordance with the provisions of the law. Both courses must contain an interactive component that requires viewers to periodically answer questions in order for the course to proceed. The DFEH expects to have such trainings available by late 2019.

Additional Resources for Employers

The DFEH also released the Harassment Prevention Guide for California Employers that provides recommended employer practices for preventing and addressing all forms of workplace harassment, including harassment based on sex.

The guide is available to help employers:

  • Develop an effective anti-harassment program.
  • Know what to do and how to investigate reports of harassment.
  • Understand the remedial measures they might pursue.

The CDA Practice Support Sample Employee Manual template includes a current Discrimination, Harassment and Retaliation Prevention policy.