Sexual Harassment Training: A Mandatory Ounce of Prevention
October 22, 2004

In our October 7, 2004 E-Update we briefly summarized several new laws signed by the Governor this Fall. One bill, AB 1825, requires employers to train supervisors on sexual harassment every two years. While this new training requirement means an increase in costs to employers on the front end, its aim is to decrease the number of sexual harassment claims against employers, which may save millions in litigation costs later. In addition, employers who implement effective training programs will have stronger defenses to those sexual harassment claims that do arise.

Although employers will not have to take any compliance action until 2005, in the short time the new training requirements have been publicized, we have received quite a few questions. Below are several frequently asked questions and answers to help guide you in implementing new or improved training programs to meet your obligations under this new law.

Frequently Asked Questions

Q: Does the new training requirement apply to all California employers?

A: No. The new law applies only to those California employers regularly employing 50 or more employees or regularly receiving the services of 50 or more persons pursuant to contract. There is no distinction between employees and independent contractors (or permanent, part-time and temporary employees) in calculating the number of “employees” necessary to qualify as a covered employer.

Q: Do out-of-state employees count toward the 50-employee minimum?

A: The new law does not specify whether employees located in other states will be counted to determine if an employer meets the 50-employee minimum. But other minimum employee provisions outlined in the Fair Employment and Housing Act count only employees working in California. So at this point, we interpret the law to cover employers with 50 or more employees in California.

Q: Must California employers with 50 or more employees train their employees employed in other states?

A: No. The new law does not require that employers implement out-of-state training programs. California employers should continue to follow all state-specific laws and regulations (such as those in Connecticut) concerning workplace training for out-of-state employees.

Q: Does the new law apply to state employers?

A: Yes. The law requires the state to incorporate the new training requirements into the 80 hours of training provided to all new supervisory employees, using existing resources.

Q. Which employees will have to be trained?

A: Sexual harassment training is required for each “supervisor.” The new law does not define "supervisor," but the Fair Employment and Housing Act already describes a "supervisor" as 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 the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." (Gov. Code § 12926(r).) Thus, even company directors and executives should be trained.

Q: What type of training is required?

A: The new law is directed at sexual harassment training. It requires at a minimum "two hours of classroom or other effective interactive training," to include:

• information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment;
• information about the correction of sexual harassment and the remedies available to victims of sexual harassment; and
• practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.

These topics are the minimum required under the law. An employer may provide longer, more frequent, or more elaborate training regarding workplace harassment and discrimination.

Further, although the new law is directed at sexual harassment training, simply training on sexual harassment will not help protect employers from other types of harassment and retaliation claims.Thus, it is wise for employers to incorporate training on all other types of unlawful harassment and discrimination (including age, national origin, religion, disability and other protected characteristics) and retaliation.

Q: What does "or other effective interactive training" mean?

A: Unfortunately the law does not provide employers any direct guidance on what types of alternative training will be considered "effective interactive training." California's law was modeled after a similar Connecticut statute that was enacted in the early 1990s. The Connecticut law does not include the "other effective interactive training" language, and, presumably, California legislators intended to give employers more options than strict classroom training because technology has vastly expanded the way in which people communicate in business today. But because the law requires "interactive training," simply reading an employee handbook is not enough. Further, watching a video or clicking through a computerized training program alone will probably not be sufficient without additional interaction such as questions and answers, role playing, behavior modeling, or group discussions. For employers who choose to use videoconferencing or internet conferencing training methods, be sure that the program includes interactive components to encourage the participants to ask questions and participate in the discussion either by computer or telephone.

Q: Who should conduct the training?

A: The law mandates that the training be conducted by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation." The law does not define what specific expertise is required and does not direct whether employers should use outside or in-house trainers. But when choosing a trainer, employers should keep in mind that a trainer's qualifications will be important if the adequacy of the training is later scrutinized. Further, some courts have determined that it is important for trainers to understand the complex body of harassment and discrimination laws and keep up-to-date with new cases that may change the interpretations of these laws. Thus, it is crucial for trainers to be able to give practical and legally accurate responses to questions raised by the participants.

PPS&C attorneys regularly conduct a wide variety of training, and are available to provide "train the trainer" sessions or deliver the training required under this new law.

Q: When do employers have to comply with the new training requirements?

A: Before January 1, 2006, covered employers must provide two hours of sexual harassment training and education to all supervisory employees employed as of July 1, 2005. Employers who already conducted training for their supervisors in or after 2003 will not have to comply with the initial training requirements. There is no provision in the new law mandating that prior training meet the new two-hour interactive requirements.

Q: How often does the training have to occur?

A: Covered employers must provide sexual harassment training and education to each supervisory employee once every two years after January 1, 2006. Further, each new supervisor (including new hires and promoted employees) must be trained within the first six months on the job.

Q: What if an employer fails to conduct the required training?

A: The law does not presently provide a penalty for non-compliance. But the Department of Fair Employment & Housing (DFEH), the state agency responsible for enforcing compliance, may audit an employer and issue an order mandating compliance.

As for litigation, a claim that the required training and education was not done will not result in automatic liability in an action alleging sexual harassment. But an employer's compliance with the law does not insulate the employer either.

Q: Are there any compliance reporting requirements?

A: No. But employers should maintain accurate training records. If the DFEH inquires, it is important for employers to have accurate records to prove that they have complied with the training requirements. Further, employers will want complete and accurate training records to assist in defending harassment claims that may pop up later.

Q: How should employers track compliance?

A: The law does not specify how employers should track training compliance. There are, however, a number of practical considerations to keep in mind when developing a compliance record, including retaining documents that include:

• the content of the training, such as the curriculum or the presentation slides and/or handouts, which should include the DFEH-185 pamphlet;
• the names, addresses, and qualifications of the trainer(s);
• the names and titles of the participants; and
• the date(s) that each employee received training.

Although there are no specific record retention requirements, private employers should consider maintaining compliance records for at least six years beginning with training conducted in 2003, although longer retention schedules could be useful down the road if needed to prove an employer’s consistent track record in taking steps to prevent workplace harassment.

Q: What should employers do now to prepare for the training requirements?

A: Although employers have until January 1, 2006, to comply, there are a number of actions employers should begin to do now:

• identify all employees who will need to be trained and keep an up-to-date log;
• develop a tickler system to record when trainings are due;
• research training options including outside trainers and in-house resources;
• develop a record to track completed trainings;
• update policies to include mandatory training requirements for supervisors;
• brief key executives on the new requirements; and
• anticipate funding needed for the trainings and amend operating budgets accordingly.

This E-Update was authored by Connie Lundgren. If you have any questions about this E-Update, please contact the author or any PPS&C attorney at (619) 237-5200.

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