166 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com the definition of unlawful sexual harassment, examples of sexual harassment, the employer’s internal complaint process, the legal remedies available through government agencies, directions on how to contact the agencies, and the protection against retaliation for opposing harassment or filing a complaint or participating in an investigation or proceeding.133 Training. California has expanded the scope of required sexual harassment training: employers of five or more employees must provide training on preventing sexual harassment to all workers by January 1, 2021.134 Thereafter, employers must provide sexual harassment training and education to each supervisory employee (and to all rank-and-file employees) once every two years, and must train new supervisors within six months of their assuming their positions.135 The training for supervisors—two hours of “classroom or other effective interactive training” conducted by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation—must include information and practical guidance regarding federal and California law on the prohibition against sexual harassment, the prevention of sexual harassment, the correction of sexual harassment in the workplace, the remedies available to victims of sexual harassment, and practical examples “aimed at instructing supervisors” in the prevention of harassment, discrimination, and retaliation, including harassment based on gender identity, gender expression, and sexual orientation.136 Training for non-supervisory employees—including temporary and seasonal employees—must last at least one hour and contain components on preventing abusive conduct and harassment based on gender identity, gender expression, and sexual orientation.137 As of January 2021, seasonal and temporary employees (or any employee hired to work for less than six months) must be trained within 30 calendar days of hire or within the first 100 hours worked, whichever occurs first.138 Temporary workers employed by a temporary agency must be trained by the temporary agency.139 Although no penalty attaches to employer failures to conduct mandatory training, that failure can be cited to argue that the employer has breached its statutory duty to take all reasonable steps to prevent workplace harassment. If the DFEH substantiates a complaint against an employer for non-compliance, then the DFEH will work with the employer to secure compliance.140 Moreover, in investigating FEHA administrative complaints of discrimination, the DFEH routinely requires proof that a respondent employer has completed the mandated training.
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