Employment Law Advisory Bulletin
Sexual Harassment Training for Supervisors:
No Longer Optional in California
By Stuart
W. Miller and Robyn Todd
[November 2004]
On Sept. 29, 2004, Governor Schwarzenegger signed
Assembly Bill 1825, which adds a provision to the California Fair
Employment and Housing Act (FEHA) mandating a minimum of two hours
of sexual harassment training for supervisors at employers with
50 or more employees or contractors. The new provision is found
at Government Code § 12950.1. Even though the new law only
requires covered employers to provide sexual harassment
training to supervisors, it is wise for all employers
to provide not only sexual harassment training, but broader anti-harassment
training to all employees, and even before the law’s
effective date. The specific requirements of the law are described
below, followed by our recommendations for implementation.
MANDATORY SEXUAL HARASSMENT TRAINING
Who Is Covered by the Law?
Sexual harassment training must be provided to all “supervisory
employees” by “an employer having 50 or more employees.”
An employer is defined as an individual or entity (“person”)
who satisfies any one of the following:
- Any person regularly employing 50 or more persons;
- Any person regularly receiving the services of 50 or more persons
providing services pursuant to a contract, e.g., independent contractors;
- Any person acting as an agent of an employer, directly or indirectly;
- The state, or any political or civil subdivision of the state;
or
- Cities.
It is unclear whether the 50-employee minimum counts only California
employees, or whether employees in other states also count toward
the minimum. The Deputy Director of Communication and Legislation
of the Department of Fair Employment and Housing (DFEH) states that
this is an open question, but that the Office of Legislation and
Policy recommends that employers assume all employees count
toward the 50-employee minimum – whether or not 50 employees
are located in California. The Executive and Legal Affairs Secretary
of the Fair Employment and Housing Commission (FEHC) confirms that
the location of the 50 employees is an open question. For now, employers
may be prudent to count all employees toward the 50-employee minimum
and await clarification from regulations or the courts.
The law does not contain its own definition of “supervisory
employee,” so it is likely the definition of “supervisor”
contained in the FEHA will apply. The FEHA’s definition of
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 these
acts, the exercise of that authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
Timing of Training Obligation
The law includes various phase-in dates, which depend on the dates
the employees assumed their supervisorial roles, and on the employer’s
provision of sexual harassment training in the past. The timing
for compliance is as follows:
- For supervisory employees who are employed as of July 1,
2005, employers subject to the law must provide the required
training by Jan. 1, 2006.
- For supervisory employees whose supervisory duties commenced
after July 1, 2005 (i.e., new hires or promotions), employers
must provide the training within six months of their assumption
of a supervisory position.
- If an employer has provided the training to a supervisory employee
after Jan. 1, 2003, the employer is not required to provide
the training by Jan. 1, 2006.
- After Jan. 1, 2006, every employer covered by the
law must provide the training to each supervisory employee once
every two years.
Sexual Harassment Training Elements
Although many employers provide sexual harassment training, current
training techniques may not satisfy the requirements of the new
law. Under A.B. 1825, sexual harassment training must consist of
the following:
| 1. |
It must last at least two hours. A representative
at the FEHC states that it is currently an open question whether
employers providing training on more than merely sexual harassment
prevention, such as training about all types of discrimination,
harassment and retaliation, must allot two hours of this training
to only sexual harassment training. |
| 2. |
The format must be “classroom or other effective
interactive training and education.” The FEHC representative
points out that employers not using a classroom format and who
desire to use web-based training must provide “effective
interactive” training. Therefore, employers who use web-based
training should ensure that supervisors have the opportunity
to ask questions and have them answered, either as part of a
“live” web-based training program in which they
can do so, or as a supplement to a “non-live” web-based
program presented by a person with knowledge and expertise as
described below. |
| 3. |
The training and education must include:
- Information and practical guidance regarding
the federal and state statutory provisions concerning the
prohibition against, and the prevention and correction of,
sexual harassment;
- Remedies available to victims of sexual
harassment in employment; and
- Practical examples aimed at instructing
supervisors in the prevention of harassment, discrimination,
and retaliation.
|
| 4. |
The training must be presented by “trainers or educators
with knowledge and expertise in the prevention of harassment,
discrimination, and retaliation.” |
These requirements are meant to establish a minimum threshold;
employers are free to provide longer, more frequent, or more elaborate
training and education if they desire.
Effect of Compliance with A.B. 1825
A.B. 1825 provides that satisfying the requirements of the law
– or failing to do so – will not, by itself, protect
or sink an employer defending a sexual harassment charge. However,
compliance will typically strengthen an employer’s ability
to defend a sexual harassment claim and may avoid instances of sexual
harassment. If there is non-compliance, the FEHC can issue an order
requiring compliance.
RECOMMENDATIONS
Even though the new law only requires covered employers
to provide sexual harassment training to supervisors, it
is a wise practice for all employers to provide anti-harassment
training periodically to all employees – whether
or not they are covered employers under the new law, and even before
the law’s effective date. The anti-harassment training
should address harassment based on sex, and other protected characteristics,
like race, age, national origin, sexual orientation and disability,
as well as information about the employer’s complaint procedures
and protections against retaliation for complaining or assisting
with a complaint. Such periodic training is prudent as a means of
avoiding and defending claims of harassment, and because the FEHA
makes it an unlawful employment practice for an employer to “fail
to take all reasonable steps necessary to prevent discrimination
and harassment from occurring.” “All reasonable steps”
reasonably includes anti-harassment training.
Supervisors and non-supervisors should be trained separately. Supervisory
training should include the importance of setting an example for
other employees, procedures if the supervisor observes harassment,
and the process for immediately addressing formal or informal complaints.
Providing sexual harassment training is also prudent because, in
California, it can help reduce or eliminate an award of damages
under the “doctrine of avoidable consequences.” In State
Department of Health Services v. Superior Court, the California
Supreme Court recently ruled that employers are strictly (automatically)
liable for sexual harassment by supervisors, even if the employer
did not know or should have known about the harassment. However,
the Court further ruled that the harassed employee will not be compensated
for damages that, more likely than not, could have been avoided
with reasonable effort and without undue risk, expense, or humiliation,
by taking advantage of the employer’s internal complaint procedures
designed to prevent and eliminate sexual harassment.
To avail itself of the avoidable consequences defense, the employer
must establish that: (1) the employer took “reasonable steps
to prevent and correct workplace sexual harassment”; (2) the
employee unreasonably failed to use the preventive and corrective
measures the employer provided; and (3) the employee’s reasonable
use of the employer’s procedures would have prevented at least
some of the harm that the employee suffered. Periodic anti-harassment
training of all employees will help an employer prove this defense.
If you have any questions regarding anti-harassment
training or policies, please contact:
This
Employment Law Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent developments
in employment law. It is not intended, nor should it be used, as
a substitute for specific legal advice as legal counsel may only
be given in response to inquiries regarding particular situations.
Copyright
© 2004, Davis Wright Tremaine LLP.
return to Advisory Bulletins
main page |
