Employers Required to Complete Sexual Harassment Training

By Charles Trudrung Taylor
Lang, Richert and Patch

Last year, Governor Schwarzenegger signed into law AB 1825, a bill mandating sexual harassment training for supervisory employees every two years. The new law provides that by January 1, 2006 all employers with 50 or more employees must provide at least two hours of sexual harassment training to supervisory employees. Although employers may resent initial costs and burdens of implementing training programs, this preventative law aims to reduce sexual harassment in the workplace, thereby saving employers money in the long run by reducing the number of costly lawsuits.

Since the law’s enactment, employers have raised important questions regarding their obligations. The questions and answers below provide a brief overview of the new law.

What employers are subject to the law?

The law only applies to employers that regularly employ 50 or more employees. This number includes independent contractors, part- time employees, temporary employees, and employees working out-of-state. Presumably, the law applies to an employer with only one employee in California and 49 located elsewhere. Although the new law does not require employers to train employees working out of state, we recommend training out-of-state supervisory employees who interact with California employees.

Who must receive the training?

All “supervisors” hired before July 1, 2005 must receive sexual harassment training by Jan. 1, 2006, and once every two years thereafter. As to employees hired or promoted after July 1, 2005, the law requires training within 6 months of acquiring a supervisory position. The law defines “supervisor” broadly. A supervisor includes anyone with authority to hire, transfer, suspend, lay off, promote, reward, discipline or direct other employees. This broad definition requires employers to look beyond job titles. When deciding who to train, employers should err on the side of caution, training all employees who possibly qualify as supervisors. Employers may also consider training all employees. An all-inclusive training program demonstrates to employees (and the courts) the company’s commitment to prevent sexual harassment.

What type of training is required?

The new law requires at least two hours of classroom or other “effective interactive training.” Due to the “interactive” requirement, the training must go beyond merely watching a video or reading an employee manual. Employers may use interactive web-based programs as a component of training, but the law does not specify whether online training alone will suffice. If an employer does opt for online training, it is recommended to supplement with in-person interaction such as role playing or question and answer sessions. The training curriculum must address four topics:

  1. The legal prohibitions against sexual harassment under federal and state law;
  2. Prevention of sexual harassment;
  3. Correction of situations involving sexual harassment; and
  4. Remedies for victims of sexual harassment.

In addition, the training must incorporate practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training should be personalized to reflect the trainees’ work environment. The law is unclear whether training is required for the prevention of harassment or discrimination on other protected bases, e.g., disability, age, religion, race, etc. Of course, comprehensive training covering all aspects of the anti-discrimination laws is recommended as it demonstrates a firm commitment by the employer in equal employment opportunity for all of its employees.

Who should conduct the training?

The new law requires use of “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” Generally, this calls for someone with more experience than a crash-course on sexual harassment, i.e., training the trainer. The trainer must have sufficient knowledge to answer questions raised by trainees. The law does not prohibit the use of in-house trainers. However, if the adequacy of the training is questioned, the trainer’s credentials may come under careful scrutiny.

What records should employers maintain?

The statute does not specify what records employers should keep as evidence of compliance. The Department of Fair Employment and Housing (DFEH), the state agency responsible for enforcing compliance, will look for evidence of the following: (1) attendance records; (2) time sheets showing at least two hours of training; (3) training modules, written and web-based; (4) resumes of trainers; and (5) quizzes demonstrating employees’ comprehension of information.

What penalties result from noncompliance?

The DFEH may audit an employer and issue an order mandating compliance. Although this penalty seems innocuous, the teeth of the law sink deep when litigation arises. While failure to provide training does not result in automatic employer liability, the jury or administrative tribunal may weigh noncompliance heavily in its decision, resulting in increased damages or penalties. Compliance with the new training law does not insulate the employer from liability, but it can provide an opportunity to assert a strong defense, which will go a long way to reduce or eliminate employer liability. Moreover, failing to comply sends a message to employees that sexual harassment is not important, and risks leaving employees without the tools to avert a potential sexual harassment situation.

For more information on compliance with the new law, or to inquire about Lang, Richert & Patch’s sexual harassment training program, please contact Charles Taylor at (559) 228-6700.

Charles Taylor is the head of the employment law group at Lang, Richert & Patch. Charles has 20 years of experience in representing clients on a variety of employment issues in state and federal courts throughout California. As detailed in the earlier article, In August 2005, Charles was nominated by his peers and based upon professional achievement in the area of employment litigation was selected as one of Northern California’s Super Lawyers.