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Article - Complying with California's Sexual Harassment Training Law

By Myron Curry

California employers have until January 2006 to comply with AB 1825, a state law mandating sexual harassment prevention training for supervisors. Through questions and answers, this article highlights the laws requirements and provides guidance on meeting them. Is my organization covered by the law? It is, if you have 50 or more employees. Under the laws definition, independent contractors and workers who are temporary service employees are counted, so that if you have only 40 regular employees on your payroll, but use 10 or more temps or independent contractors, you are a covered employer.

Who has to be trained? Supervisors must be trained. In California, the definition of supervisor is broad. The California Fair Employment and Housing Act defines supervisors to include any individual having the authority . . . 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 the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment. Thus, even employees who merely have input into personnel decisions, but who are not themselves final decision makers, may be considered supervisors who must receive training.

How much training is required? The requirement is for two hours of sexual harassment prevention training to supervisory employees every two years. Who does the training? Training must be delivered by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Does it matter how the training is delivered? Yes. The requirement is for two hours of classroom or other effective interactive training and education. The requirement that training be interactive probably means that simply showing supervisors a video, having them listen to a lecture, or asking them to read something would not satisfy the requirement. Some typical interactive aspects of training include questions and answers and role playing. It may be advisable to test participants at the end of the training to demonstrate that it was effective.

What does the training have to cover? The training must include information and practical guidance regarding federal and state laws that prohibit sexual harassment, including prevention and correction of harassment, and remedies available to victims. The statute specifically requires employers to use practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

Is training in accordance with AB 1825 a defense to a sexual harassment claim? Unfortunately, its not. The law specifically states that compliance is not a defense to a sexual harassment claim and, conversely, that a supervisor's failure to receive training is not grounds for establishing liability for harassment under the Fair Employment and Housing Act. The FEHA makes it an unlawful practice for an employer to fail to take all reasonable steps necessary to prevent harassment from occurring. Providing the required training is one step, but only one step, in meeting this requirement. Indeed, AB 1825 does 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. The U.S. Supreme Court and state and federal agencies have made it clear that employers that train employees about sexual harassment and that have an anti-harassment policy and a complaint procedure that has been communicated to employees minimize their liability exposure. So, while training in compliance with 1825, or at a more extensive level, will not totally immunize an employer from sexual harassment liability, it will definitely contribute to lowering the susceptibility.

What's the deadline for compliance? After January 1, 2006, all supervisors must receive at least two hours of training every two years. Supervisors employed as of July 1, 2005 must complete the initial two hours of training by January 1, 2006. However, supervisors who have received training after January 1, 2003, need not be retrained by the January 1, 2006, deadline (future bi-annual training will still be required). Supervisors who are hired, or employees promoted to supervisory positions, after July 1, 2005, must complete the training within six months of hire or promotion.

What's the penalty for noncompliance? Failure to comply could cause the Department of Fair Employment and Housing to issue an order requiring the employer to conduct the required training. It's worth noting as well that failure to meet minimum AB 1825 standards could provide a basis for punitive damages in the event of a sexual harassment lawsuit. A plaintiff's lawyer might argue that failure to train in accordance with the law demonstrates an organization's reckless disregard for the law, therein establishing a potential basis for punitive damages liability.

Is California the only state with this kind of requirement? No. Connecticut and Maine have similar requirements, although the specifics differ. The New Jersey Supreme Court ruled in 2002 that an employer could avoid liability if it has certain preventive measures, including training, in place [Gaines v. Bellino, 173 N.J. 301 (2002).]

What do I need to do to assure my organization is on top of compliance with AB 1825? Here are some essential suggestions:

Develop a list of all those who meet the FEHA's definition of a supervisory employee and a system for keeping track of those who are newly promoted to supervisor or whose responsibilities change to include supervisory duties.
Purchase or develop interactive training that has been created and developed by knowledgeable experts with practical experience in prevention of sexual harassment.*

Schedule and administer training for all current supervisors who have not had sexual harassment training after January 1, 2003.
Develop a system to monitor and ensure new supervisors are trained within six months of hire/promotion and every two years thereafter
Implement and maintain a system for recordkeeping to demonstrate compliance.
Update policies and procedures to include reference to and documentation of adequate training.
Ensure that your executives are aware of this requirement and that they account for the time and financial commitment that will be involved in training supervisors in accordance with the new law

About the Author:

Myron Curry is the President of Business Training Media, a global provider of corporate training courses, skill assessments, videos, books, seminars and exercises for employee development. Subscribe to his FREE online monthly Workforce Management eNewsletter that's jammed packed with management tips, advice, articles, strategies and free HR downloads.

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