Guest Column by Sue Bendavid-Arbiv All employers must ensure a workplace free of sexual harassment. Employers must post sexual harassment information in locations where employees congregate. Employers must provide sexual harassment information sheets. Employers must develop and implement sexual harassment prevention policies describing procedures for lodging complaints and how the employer will respond. Employers must also train supervisors on their responsibilities to detect and prevent workplace harassment. Up until now there was no uniform procedure for training supervisors on sexual harassment. That has now changed with the passing of AB 1825 which added a provision to the Fair Employment and Housing Act (FEHA) new Government Code section 12950.1. Under section 12950.1, starting in 2005, all California employers must provide supervisors with two hours harassment training and education. For the first time, an employer of 50 or more is now statutorily obligated to train its supervisors every two years on unlawful sexual harassment. Here are answers to some likely questions about the new statutory requirement:: Who is a Covered “Employer” That Must Provide Training Under the Statute? All covered “employers” in California are now statutorily obligated to provide classroom type sexual harassment training. The statute defines “employer” as “any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract (i.e., independent contractors). . . ” The term also includes “the state, or any political or civil subdivision of the state, and cities.” Thus, under the statute, an employer of 50 or more is obligated to provide training regardless of whether it designates its workers as “employees” or “independent contractors.” What the statute fails to specify is whether it includes part time employees and the point in time when the 50 is counted. Is the headcount based on the average number of workers over the calendar year? Is it determined on a date certain every year? Is it the date when a sexual harassment incident occurs? Future legislation or regulations may clarify this issue. One possible solution is to mirror section 7297.0 of the California Code of Regulations that describes which employers are covered by California Family Rights Act (the law requiring employers of 50 or more to provide family and medical leave). That regulation says an employer is covered if it has an aggregate of 50 part or full time employees on its payrolls for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. The workweeks do not have to be consecutive. What is the Scope of the Training? The training must include: (i) information on the federal and state laws prohibiting sexual harassment; (ii) practical guidance on the prevention and correction of sexual harassment; (iii) remedies available to sexual harassment victims; and (iv) practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. What Expertise Must the Trainer Possess? The training must be conducted by those possessing knowledge and expertise in the prevention of harassment, discrimination, and retaliation. Before hiring a trainer, ask about the trainer’s prior experiences and for references. The trainer should be prepared to discuss any particular problems the employer may have as well as the employer’s internal policies and procedures for handling harassment problems. How Long Must the Training Be? The training must last a minimum of two hours. The two-hour sexual harassment training can be added to other supervisory training sessions, like safety and performance management. The training can also be added to orientations for new hires or newly promoted supervisors. What is the Deadline for Providing the Training? By January 1, 2006, the sexual harassment must be completed for all supervisory employees who were employed as of July 1, 2005. For all new supervisory employees, the training must be completed within six months of taking on a supervisory position. An employer who provided this training to a supervisory employee after January 1, 2003, is not required to provide training and education by the January 1, 2006, deadline. How Often Must the Training Take Place? After January 1, 2006, each covered employer must provide the training to each supervisory employee once every two years. Employers should remember to calendar these trainings well in advance to ensure good planning and attendance. It is recommended that two sessions be calendared one as the primary and the other as a make up for those who were absent. Who Must Be Trained? All supervisors must be trained. The new statute does not define the term “supervisor.” However, in 1999, the legislature amended FEHA to specifically define supervisor as: “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, 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.” The fact that supervisors must be trained under the statute presents a “catch 22” for employers and raises a question that employers must think carefully about. Should low-level lead employees be designated as supervisors and attend the supervisor training? On the one hand, employers will want all those in even marginal supervisory positions to be trained so that employers can establish it takes extra-precautionary steps in preventing harassment. On the other hand, including such marginal supervisors in the training increases the risk of “strict liability” claims. Sometimes harassment litigation focuses entirely on whether the harasser was a supervisor or merely a co-worker of the victim. Unlike co-worker harassment, when supervisors commit sexual harassment, the employer is “strictly liable.” This means the employer will be responsible for the damages the victim suffered, even if the company’s upper management knew nothing about the harassment. If the employer includes the purported harasser/lead employee in the supervisory training, that may result in an unintended admission by the employer that the individual was in fact a supervisor, thus exposing the employer to the higher strict liability standard. A way to reduce this risk is to provide company-wide training to supervisors and employees alike. What Can Employers Do to Establish Compliance? Employers should create documentary evidence demonstrating compliance. This can consist of sign-in sheets with each attending supervisor’s name and signature. The employer (or the trainer) should create and circulate agendas for each training session, identifying the particular topics discussed. A copy of each hand-out should be kept with the sign-in sheet and agenda. One of the hand-outs should be the employer’s own policy against harassment so that supervisors can attest they were trained not only on the law, but on their own employer’s policies. What Are the Penalties If The Employer Does Not Provide the Training? If an employer violates the training requirements of the statute, it might find itself subject to an order requiring the employer to comply with the law. There are no monetary penalties in the statute. A claim that the training did not reach a particular individual or group of individuals does not “in and of itself” result in liability in favor of an employee/applicant alleging sexual harassment. However, mere compliance with the new law does not immunize the employer either. Even prior to the statute, employers were obligated to take all reasonable steps to prevent and correct harassment and discrimination. The training required by the new law establishes the minimum threshold requirements. Employers should promptly schedule sexual harassment training for all supervisory employees and for all employees when taking on management/supervisory duties. While doing so does not necessarily immunize an employer from liability, it will demonstrate a respect for the law, and a general sense that the employer takes its responsibilities seriously. Not only will this increase heightened awareness on behalf of supervisors, it will result in fewer claims. Sue Bendavid-Arbiv is an attorney with Lewitt, Hackman, Shapiro, Marshall & Harlan in Encino
