An Imperative for Employers Everywhere: California Enacts Sexual Harassment
Training Statute
December 2004
What do the U.S. Supreme Court, the Equal
Employment Opportunity Commission, the states of California, Connecticut, and
Maine, and Jackson Lewis have in common? Each has said that employers must train
their managers and supervisors about the unlawfulness of sexual harassment,
the potential for liability it carries, and what to do to prevent and remedy
its occurrence in all workplaces. In effect, each has acknowledged that workplace
training is fundamental to maintaining what anti-discrimination laws require:
that employers must provide a workplace where employees can perform their jobs
without harassment or other unlawful interference and, should harassment occur,
employers have the legal duty to prevent the misconduct and remedy its consequences.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
AB 1825, the bill signed by California Governor Arnold Schwarzenegger and
which became effective on September 30, 2004, requires employers with 50 or
more employees to provide 2 hours of sexual harassment prevention training to
supervisory employees every 2 years. The training must include strategies for
preventing sexual harassment in the workplace and must discuss remedies for
victims of unlawful harassment.
Under the California law, a covered "employer" employs 50 or more persons,
including temporary service employees and independent contractors. The law does
not specify that the 50 employees must be working within California. The law
is applicable to employers with even just a few employees in California if the
employer's workforce totals 50 or more employees.
Specific Training Requirements Include "Practical Examples"
To meet the new California requirements, sexual harassment prevention training
must be in the form of "information and practical guidance" regarding federal
and state laws concerning the prohibition of, and the prevention and correction
of, sexual harassment. The California law specifically requires "trainers or
educators with knowledge and expertise in the prevention of harassment, discrimination,
and retaliation" to conduct "two hours of classroom or other effective interactive
training and education." Because of the term "interactive," an audio or video
presentation alone without questions and answers, role playing, and other interactive
methods may be insufficient.
All Supervisors Must Meet Training Requirements by January 2006
The training requirements will apply to most employees with some supervisory
authority. The California Fair Employment and Housing Act specifically defines
"supervisor" 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
recommend the above personnel actions may be deemed "supervisors" who must receive
training.
After January 1, 2006, all supervisors must receive at least 2 hours of training
every 2 years. Supervisors employed as of July 1, 2005, must complete the initial
2 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 biannual training will still be required). Supervisors who
are hired, or employees promoted to supervisory positions, after July 1, 2005,
must complete the training within 6 months of hire or promotion.
California Law Adds to Risk for Employers Who Fail To Train Supervisors
The California training law penalizes employers who fail to comply with the
training requirement by triggering the issuance of an order from the Department
of Fair Employment and Housing to conduct the required training. The law specifically
states that compliance with AB 1825 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 law explicitly states that its requirements are minimum
standards and employers are free to implement more rigorous or frequent preventive
measures.
Compliance Strategies Must Take into Account All Aspects of the Law of Training
While not mandating supervisory training, the U. S. Supreme Court's landmark
1998 decisions in Burlington Industries, Inc. v Ellerth and Faragher v City of Boca Raton, essentially
directed employers to conduct supervisory training if they are to avoid or minimize
liability for harassment and, under Kolstad,
for punitive damages. Under the Supreme Court's decisions, the ability of employers
to assert the affirmative defense to liability depends, in part, on employee
training as a critical part of a preventive strategy that includes an anti-harassment
policy and complaint procedure that have been communicated to the workforce.
Other states either mandate sexual harassment training or recognize it as
a defense to harassment claims. For example, Connecticut requires 2 hours of
sexual harassment training for employers with 50 or more employees. Under the
Connecticut statute, all new supervisory employees must receive training within
6 months of assuming new supervisory duties, but annual or biannual training
is not required, unlike in California.
Maine's training requirements are more stringent than California's, requiring
employers with 15 or more employees to provide a sexual harassment education
and training program for all new employees
within 1 year of commencement of employment. The training must include, at a
minimum, the following information: (1) the illegality of sexual harassment;
(2) the definition of sexual harassment under state and federal laws and federal
regulations; (3) a description of sexual harassment utilizing examples; (4)
the internal complaint process available to the employee; (5) the legal recourse
and complaint process available through the Maine Human Rights Commission, including
instruction on how to contact the Commission and that the individual is protected
against retaliation. For supervisory and managerial employees, Maine employers
must conduct additional training within
1 year of commencement of employment. The training must specify the supervisory
responsibility to take steps to ensure immediate and appropriate corrective
action in addressing sexual harassment complaints.
In New Jersey, the state's supreme court issued a ruling in 2002 that, in
certain circumstances, an employer could avoid liability for sexual harassment
by a supervisor if the employer had certain preventive measures in place. In
the case of Gaines v Bellino, 173 NJ 301 (2002),
the State Supreme Court described those measures as: (1) formal policies prohibiting
harassment in the workplace; (2) complaint structures for employees' use, both
formal and informal in nature; (3) anti-harassment
training, which must be mandatory for supervisors and managers, and must be
available to all employees of the organization; (4) the existence of
effective sensing or monitoring mechanisms to check the trustworthiness of the
policies and complaint structures; and (5) an unequivocal commitment from the
highest levels of the employer that harassment would not be tolerated, and demonstration
of that policy commitment by consistent practice.
As these mandates demonstrate, the message from some state legislatures,
the courts and the EEOC has been consistent: be proactive and take preventive
measures, including workforce training, to avoid or minimize harassment liability.
The actions of the California legislature and governor have now upped the ante
for employers by making mandatory supervisory training the base line upon which
the sufficiency of proactive and preventive measures will be judged.
Anti-Harassment Training and the "Avoidable Consequences Doctrine"
The California Supreme Court in Department of Health
Services v Superior Court (McGinnis) refused to adopt the federal Faragher/Ellerth defense to harassment claims
under the California Fair Employment and Housing Act. Instead, the Court applied
the tort doctrine of "avoidance consequences" to limit damages for sexual harassment
to the time period after which the employee could have used an employer-provided
complaint process and reasonably avoided the consequences of unlawful harassment.
In an effort to reward employers who implement appropriate preventive measures,
the Court held that the "avoidable consequences" doctrine may apply where: (1)
the employer has taken reasonable steps to prevent and correct workplace harassment;
(2) the employee unreasonably failed to use the preventative and corrective
measures that the employer provided; and (3) reasonable use of the employer's procedures would have prevented at least
some of the harm the employee suffered. Given AB 1825, sexual harassment training
will be just one "reasonable step" employers must take to minimize liability.
AB 1825 also may provide a basis to avoid (or if training is not done, to
impose) punitive damages. Plaintiffs' lawyers may argue that failure properly
to train in accordance with the new law demonstrates an organization's "reckless
disregard" for the Fair Employment and Housing Act, thereby establishing a potential
basis for punitive damages liability.
Employers can take a number of steps to educate and train employees on harassment
prevention policies and practices. For example, employees should be provided
copies of the employer's equal employment opportunity and harassment prevention
policies immediately after hiring, and on a regular basis thereafter. These
policies should provide for various internal avenues of complaint. In addition, all employees should be trained on appropriate
workplace behavior and the proper procedures for reporting violations of the
employer's policies. Specifically, all supervisors and managers should be provided
instruction on the appropriate way to respond to employee complaints, including
detailed information regarding the employer's complaint investigation and resolution
practices. Employers should demonstrate a commitment to abolishing sexual harassment
by taking severe disciplinary action against those who engage in serious violations
of company policy, or who commit repeat violations.
Employers with California-Based Workers Should Take Action Now
Employers of 50 or more employees, contractors, or temporary service workers,
and which have one or more employees or workers in California have until January
1, 2006, to implement the supervisory training requirements of AB 1825. Training
only supervisors satisfies the minimum obligations under the new California
law. However, employers should consider training all employees in California
to minimize potential liability.
In anticipation of January 1, 2006, employers must develop a strategy for
compliance. Things to consider well in advance of the deadline include the following.
- Purchasing training or developing in-house capabilities that will meet
the California law standard for trainer qualifications; options include
live or interactive, online or other electronic training technology.
- Determining and meeting the need for bilingual or multi-lingual instruction.
- Developing a means to monitor compliance and ensure new supervisors
are trained within 6 months of hire/promotion and every 2 years thereafter.
- Installing and maintaining a system for recordkeeping to demonstrate
compliance.
- Reviewing and updating policies and procedures to include reference
to and documentation of adequate training.
- Educating company executives about the new California law, as well as
all employment law training requirements, to ensure the allocation of time
and financial resources to meet the employer's obligations. Discussion should
include the consequences of the failure adequately to train managers, supervisors,
and rank and file employees and the risks of increased liability for unlawful
harassment.
BILL NUMBER: AB 1825 ENROLLED
BILL TEXT
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