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California Legislature Mandates Sexual Harassment Training

January 1, 2005

By: Pamela J. Marantz

As of January 1, 2005, Assembly Bill 1825, Section 12950.1 has been added to the California Government Code, which will require California employers with 50 or more employees to provide training and education regarding sexual harassment to all supervisory employees.

What Training is Required?

• At least two hours of sexual harassment training for all supervisory employees.
• Includes supervisors employed as of July 1, 2005 and new supervisors within six months of hire.
• Individuals promoted to supervisory positions must be trained within six months of promotion.
• Follow-up training once every two years for all supervisory employees beginning January 1, 2006.
• Sexual Harassment training must include: "the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment . . . "

Under California's Fair Employment Housing Act (FEHA and codified as Government Code §12900 et seq.) a supervisor is defined as:
"any individual having the authority in the interest of the employer to hire, transfer, suspend, layoff, 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 routing or clerical nature, but requires the use of independent judgment." Government Code §12926(r).

Accordingly, since the definition of "supervisor" is rather broad, most employees will require training under this new law. Realistically, an employer should routinely err on the side of caution and consider an employee as a supervisor for purposes of this new statute if there is a question concerning his or her status as a supervisor.

Most importantly, the new law requires training to be provided by " . . . trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation." Strangely, the statute does not mandate how many hours of training employers must provide after January 1, 2006. However, employers should be safe if guided by the statute's language specifying at least two hours of training for supervisors employed as of July 1, 2005 and continue to provide at least two hours of training to supervisors every two years beginning January 1, 2006.

What Happens If An Employer Does Not Comply?

The short answer is that the employer will receive an order requiring compliance. Currently, there are no fines or other civil or criminal penalty for failure to comply with the statute. Moreover, Subsection (d) of the statute provides that a " . . . claim that the training did not reach a particular individual or individuals shall not in of itself result in the imposition of liability of any employer . . . in any action alleging sexual harassment."

This means, for example, that if a company is sued in a civil action for sexual harassment, the company cannot be found liable for sexual harassment solely due to noncompliance with the training required by the new statute. However, employers, their attorneys and insurance carriers must beware as the lack of compliance will certainly be introduced prominently into evidence at trial in a sexual harassment lawsuit by any competent plaintiff attorney. The fact that a company fails to comply with this simple training requirement as required by law, will be extremely damaging at the time of trial. Unfortunately for employers, since the law does not act as a sword for a sexually harassed employee, it also does not act as a shield. The statute provides that it is not a defense for an employer to claim compliance and thereby avoid liability. Simply put, compliance, or the lack thereof, with the training requirements will be considered as evidence in an action for sexual harassment, but will not, by itself, either impose or preclude the imposition of liability. Any defense counsel would be more confident in proceeding to trial with a client who has complied with applicable state laws. Failure to comply with this simple mandate may prove to be the proverbial "last straw" for a jury which could result in returning a large plaintiff verdict. By the same token, a company that has complied with the statute is not only less likely to be found liable in a sexual harassment lawsuit, but damages awarded to a plaintiff are likely to be less as compared to those employers who have not complied.

Conclusion

California has become more sensitive to issues concerning the work place and employers are faced with increasing regulatory demands as a result. Fortunately, Government Code §12950.1 requires training that is not overly burdensome. Employers should realize that the requirements now mandated are designed to be minimum standards. In fact, the statutes specifically states that the statute is not intended to discourage or relieve any employer from providing for additional education. Ultimately, it is the employer's responsibility under State law to take all reasonable steps necessary to prevent and correct harassment and discrimination. Employers can rest assured that the one which does not take such steps will be undressed in front of a jury in the next sexual harassment lawsuit.