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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:

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:

Stuart W. Miller San Francisco (415) 276-6584 stuartmiller@dwt.com

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.

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