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.
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.
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.
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.
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.
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.
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 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.
INTRODUCED BY Assembly Member Reyes
An act to add Section 12950.1 to the Government Code, relating to employment practices.
LEGISLATIVE COUNSEL'S DIGEST
AB 1825, Reyes. Sexual harassment: training and education.
Existing law makes certain specified employment practices unlawful, including the harassment of an employee directly by the employer or indirectly by agents of the employer with the employer's knowledge. Existing law further requires every employer to act to ensure a workplace free of sexual harassment by implementing certain minimum requirements, including posting sexual harassment information posters at the workplace and obtaining and making available an information sheet on sexual harassment.
This bill would require employers with 50 or more employees to provide 2 hours of training and education to all supervisory employees, as specified, within one year of January 1, 2005, unless the employer has provided sexual harassment training and education to employees after January 1, 2003. The bill would require each employer to provide sexual harassment training and education to each supervisory employee once every 2 years, after January 1, 2006. The bill would require the state to incorporate this training into the 80 hours of training provided to all new supervisory employees, using existing resources. The bill would provide that a claim that the training and education did not reach a particular individual does not automatically result in the liability of an employer for sexual harassment and that an employer's compliance with these provisions does not insulate the employer from liability for sexual harassment of any current or former employee or applicant. The bill would specify that the statute establishes a minimum threshold for training and education and that employers may provide training and education beyond that required by the statute to prevent and correct sexual harassment and discrimination.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12950.1 is added to the Government Code, to read:
12950.1. (a) By January 1, 2006, an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position. 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. After January 1, 2006, each employer covered by this section shall provide sexual harassment training and education to each supervisory employee once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b) The state shall incorporate the training required by subdivision (a) into the 80 hours of training provided to all new supervisory employees pursuant to subdivision (b) of Section 19995.4 of the Government Code, using existing resources.
(c) For purposes of this section only, "employer" means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.
(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer's compliance with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.
(e) If an employer violates the requirements of this section, the commission shall issue an order requiring the employer to comply with these requirements.
(f) The training and education required by this section is 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.
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