On December 16, 2005, California’s Fair Housing and Employment Commission (“the Commission”) issued proposed regulations which clarify employers’ obligations to provide supervisors with sexual harassment training under the Fair Employment & Housing Act (“FEHA”). Pursuant to the FEHA, employers with 50 or more employees are required to provide two hours of sexual harassment training and education to all supervisory employees at least once before January 1, 2006 and at least once every two years thereafter.

The proposed regulations confirm that FEHA’s requirements apply to employers which engage in any business or enterprise in California and which also employ 50 or more employees. It is not necessary for all 50 employees to work at the same location or to reside in California in order for FEHA to apply. Nor is it necessary that a supervisor be physically located in California; so long as an individual supervises California employees, the FEHA’s training requirements are triggered. The proposed regulations clarify that the training requirements apply to employers which employ 50 or more full time, part time, temporary or contract workers each working day in any twenty consecutive weeks within the calendar year.

Under the proposed regulations, the training and education required under FEHA can take various forms. Acceptable training includes traditional in-person, instructor led classroom training, as well as audio, video, computer-based or web-based training and seminars. Regardless of the technology used, it is mandatory that the method provides trainees with an opportunity for feedback, the ability to ask questions and receive answers, and some testing component that measures progress and the acquisition of knowledge. The FEHA requires that employers provide at least two hours of harassment training every two years. However, the Commission’s proposed regulations clarify that the training need not be completed in two consecutive hours so long as any computer-based training segments are at least fifteen minutes in duration and classroom training or web-based seminars be in segments of half an hour or more. Additionally, computer-based training is sufficiently long if it covers all of the content a two hour classroom or on-line seminar designed for the average learner would cover.

FEHA and the proposed regulations mandate that the content of the harassment training include, among other things, a review of the applicable Federal and State statutes and case law defining, prohibiting and preventing unlawful harassment in employment. The training must also include a description of the types of conduct that constitute harassment, available remedies, prevention strategies, and training on both how to report harassment and how to respond to and investigate reports of harassment.

The proposed regulations describe which individuals are qualified to offer or, in the case of computer-based training, design the training and education required by the FEHA. Specifically, California licensed attorneys, human resource professionals, psychologists or other individuals are qualified to give or design the required training provided they have legal education or practical experience in harassment training and knowledge of California laws prohibiting unlawful harassment. The proposed regulations list the desirable and undesirable personal qualities a trainer should and should not have, and also describe what topics a trainer should be qualified to train about. Among other things, trainers must be qualified to train about the employer’s anti-harassment policy; what is unlawful harassment; how to intervene in harassing situations; how to report harassment; how to respond to and investigate complaints of harassment; and what is and how to prevent illegal retaliation.

Although the FEHA requires harassment training for supervisors every two years, the proposed regulations provide some flexibility as to how an employer tracks the training requirements. An employer may track its training obligations individually, meaning each supervisor is trained within two years from the date he or she last completed harassment training. In the alternative, an employer may designate a “training year” in which it trains all of its supervisors by the end of that year. Under this method, an employer who has trained its supervisors by December 31, 2005, must again train its supervisors by December 31, 2007. Regardless of which method an employer chooses, when a new supervisor is hired, that supervisor must be trained within six months of assuming their supervisory position. Similarly, new businesses established after January 1, 2006, must train their supervisors within six months of the establishment of the business.

The proposed regulations underscore the need for employers to prepare and execute a detailed harassment training plan for all current and future supervisors subject to California’s FEHA requirements. Designing a comprehensive plan which ensures that the training is offered by qualified individuals and adequately covers the mandated topic areas will likely require the dedication of significant time and resources. The proposed regulations issued by the Commission are currently subject to a public notice and comment period, after which time final regulations will likely be issued.