SEXUAL HARASSMENT TRAINING LEGISLATION SIGNED INTO LAW

On September 29, 2004, Governor Schwarzeneggar signed innovative legislation into law that requires employers with 50 or more employees to provide training and education to their supervisory employees. The legislation, AB 1825, requires employers to initiate steps to comply with the new training mandate for supervisory employees who are employed as of July 1, 2005, as well as to new supervisors. It is explained below.

1. Employer Coverage Standards

The new rules are embodied in Government Code Section 12950.1. They amend the California Fair Employment and Housing Act (“FEHA’) and apply only to employers “regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract.” It, therefore, applies to relatively large employers, including those who utilize the services of leased or temporary employees. The rules also apply to persons acting as agents of an “employer,” directly or indirectly, the State of California, or any political or civil subdivision of the state, and cities.

The 50-employee threshold is higher than the five-employee standard that generally applies for the FEHA to cover an employer. Thus, smaller employers are not covered by the training mandate even though they remain subject to the FEHA.

2. Effective Date

AB 1825 is scheduled to take effect on January 1, 2005, but provides employers time to fulfill their initial training and education mandates. The first obligation applies to supervisory employees who are employed as of July 1, 2005. These supervisors must receive the required training by January 1, 2006, unless they receive credit for prior training and education that was provided after January 1, 2003. For the credit to apply, the prior training must satisfy the new standards applicable under the legislation.

The second obligation applies to all new supervisory employees hired or promoted into supervisory positions. New supervisors must be trained within six months of their assumption of a supervisory position.

Additional sexual harassment training and education must be provided periodically after the first phase of training is completed. After January 1, 2006, covered employers must provide training and education to each supervisory employee at least once every two years.

3. The Training and Education Mandate

The new law explains the type of sexual harassment training that must be provided to supervisory employees. First, it must consist of at least two hours of classroom or other effective interactive training and education regarding sexual harassment. The law does not specify whether the two hours must occur in a single period. It does not prohibit training on other subjects outside of the two-hour window. However, it appears that the two hours of harassment training should not be diluted by including unrelated topics in that time period.

Second, the training and education must include information and practical guidance regarding the federal and state statutory provisions concerning (a) the prohibition against sexual harassment, (b) the prevention and correction of sexual harassment, and (c) the remedies available to victims of sexual harassment. The training must also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. It must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

The law provides that the new mandate establishes a “minimum threshold” that is not intended to discourage or relieve employers from providing longer, more frequent, or more elaborate training and education regarding workplace harassment. Similarly, it is not intended to discourage employers from providing additional training on other forms of unlawful discrimination in order to meet their obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.

4. Special Rules for the State

The statute provides specific rules that must be followed by the State of California for its own employees. It requires the state to incorporate the training into the 80 hours of training provided to all new supervisory employees pursuant to Government Code Section 19995.4(b).

5. Definition of "Supervisor"

The new legislation requires employers to provide training and education to supervisory employees. Presumably, the FEHA's definition of "supervisor" set forth in Government Code Section 12926(r) will be used to determine the scope of the training obligation. It is defined to mean "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." It also includes individuals with the responsibility to direct other employees, adjust their grievances, or effectively recommend that action if "the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Employers should keep this definition in mind when determining the individuals they should train. Many employers may choose to conduct training for all employees rather than simply supervisors.

6. Effect of Training

The new law makes it clear that the provision of training will not operate as a complete defense to harassment claims. Similarly, the failure to provide adequate training, although a violation of the law, will not result in automatic liability. It states that a claim that a particular individual or group of individuals were not trained “shall not in and of itself result in the liability of any employer” in a sexual harassment case. Conversely, an employer’s compliance with the training requirements will not insulate the employer from liability for sexual harassment. If an employer violates the requirements of the new law, the Fair Employment and Housing Commission must issue an order requiring the employer to comply.