Sexual Harassment
Prevention Training Now Required By State Law
It
has long been advised that California
employers train all employees on how to prevent sexual harassment in the
workplace. This training helps avoid claims of harassment and can reduce
liability in case such claims are made. Now, state law requires such
training.
On
September 29, 2004, Arnold Schwarzenneger signed
AB 1825 into law mandating sexual harassment prevention training. The law
requires California
employers with more than 50 employees to provide supervisors with two hours
of sexual harassment training every two years.
Reason for the Legislation
The
legislation was introduced out of concern that not enough was being done to
eliminate the sexual harassment problem in the workplace. California law requires that all
employers act to ensure a workplace free of harassment. However, besides requiring
posters, existing law did not require any more of employers.
The
author of the bill argued that, even with current laws to prevent sexual
harassment, during the 2002-2003 fiscal year,
4,231 sexual harassment cases were filed with the Department of Fair
Employment and Housing (DFEH), totaling 22% of all cases filed at DFEH.
According to the author of the legislation, the impact of sexual harassment
on businesses is significant: harassment costs the average Fortune 500
company $6.7 million per year in indirect costs alone.
Who Is Covered
The
law applies to companies that regularly employ 50 or more employees. It
also applies to entities that regularly receive the services of 50 or more
persons pursuant to a contract. Thus, the employee count includes temporary
workers and independent contractors.
When Must Training Be Provided and How Often
The
law imposes a requirement of two hours of training for supervisors every
two years. The initial requirement is that employers must provide the
training by January 1, 2006 to all employees who are employed as of July 1,
2005. Any employer who has provided this training and education to a
supervisory employee after January 1, 2003 is not required to provide
training and education by the January 1, 2006 deadline.
Supervisors
hired or employees promoted to supervisory positions after July 1, 2005
must receive the training within six months after hiring or
promotion.
Specific Requirements
The
law provides specific information regarding the type of training that must
be provided.
The
training is required to be conducted through "classroom or other
effective interactive training." Having a supervisor sit and watch a
video with no interaction will likely be insufficient.
The
training must be provided only by "trainers or educators with
knowledge and expertise in the prevention of harassment, discrimination,
and retaliation." Thus, employers should use trainers with an
extensive training and harassment prevention backgrounds. Employers must
take the time to ensure that they have a knowledgeable trainer.
The
training must also include the following:
- Information and
practical guidance regarding the federal and state statutory
provisions concerning the prohibition against and the prevention of
sexual harassment;
- Information about
correction of sexual harassment and the remedies available to victims
of sexual harassment in employment;
- Practical examples
aimed at instructing supervisors in the prevention of harassment,
discrimination, and retaliation.
Failure to Train Increases Risk
The
statute states that failure to provide training is not grounds for
liability for harassment under FEHA. However, failure to provide training
will result in an order being issued by the DFEH mandating the training.
More
importantly, regardless of the statute, failure to provide the training
increases the risk of liability in a sexual harassment lawsuit. While the
statute says that providing the training alone is not a defense to
harassment, the fact is that California
courts have held that anti-harassment training, complaint processes, and
preventative measures can minimize liability.
Employers Should Consider Providing More than the Minimum Amount of
Training
AB
1825 sets only a floor for the amount of training that should be provided
and not a ceiling. In fact, the statute explicitly says that it:
[I]s intended to establish a minimum
threshold and should not discourage or relieve any employer from providing
for longer, more frequent, or more elaborate training and education
regarding workplace harassment or other forms of unlawful discrimination in
order to meet its obligations to take all reasonable steps necessary to
prevent and correct harassment and discrimination.
Employers
should consider providing extra training, and training that does not just
focus on sexual harassment but covers all areas of discrimination and
harassment. Such training helps employers avoid litigation in the first
place and responsibly discharges their obligations to a harassment and
discrimination free workplace.
Tips for Employers
Employers
should immediately take the following steps:
- Determine which
employees you have trained in 2003 and 2004. Supervisors trained in
these years will not need training in 2005.
- Determine which
employees currently need to be trained.
- Create a tracking
program to keep account of which supervisors have completed training
and when. Keep accurate records on file.
- Determine who will
conduct training for your employers. Retain qualified, knowledgeable
and experienced trainers.
- Establish the
training program using the statutory guidelines – interactive,
practical examples, comprehensive coverage.
- Update
anti-harassment and anti-discrimination policies. Inform management
employees of the new training requirement.
Please contact our office (via e-mail, fax
916-492-6556 or telephone 916-492-6555) to sign up for mandatory supervisory
harassment training.
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