2004-25 - LEGAL ALERT

California Employers Now Required To Do Sexual Harassment Prevention Training

We have long advised employers to think of training management on sexual harassment as being a risk management tool. Responding to a tremendous upsurge in harassment litigation statewide, Governor Arnold Schwarzenegger signed a law last September mandating that beginning in 2005, every employer with 50 or more employees must provide its entire supervisory staff with two hours of sexual harassment training every two years. We have prepared this practical Question and Answer guide to help you comply with this important new law.

Q: Who Is Covered By The New Law?

A: The law applies to every company in California that regularly employs 50 or more employees. In addition, it also applies to companies that "regularly receive the services of 50 or more persons pursuant to a contract". Thus, when figuring out whether the law applies, you should include temporary workers and independent contractors where the company regularly engages such personnel.

Q: When Must I Provide The Required Training?

A: This year. Employers must train all supervisors who were on the payroll as of July 1, 2005 by no later than January 1, 2006. Supervisors hired (or employees promoted to supervisory positions) after July 1, 2005 must receive the training within six months after hiring or promotion.

Q: Are There Any Exceptions To The Requirement?

A: Yes. Any supervisor who has received sexual harassment training since January 1, 2003 need not be trained again until 2006.

Q: How Often Must The Training Be Provided?

A: Beginning in 2006, each supervisor must be trained at least once every two years.

Q: Are There Any Specific Requirements Regarding The Content of The Training?

A: Yes. The law is very specific about what the content must include. The training must contain all of the following elements:

• Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment;

• Information about correction of sexual harassment and the remedies available to victims of sexual harassment in employment; and

• Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.

The law also specifically mandates that the training be conducted through "classroom or other effective interactive training." To satisfy the "interactive" requirement, training ought to occur with a live instructor. In all likelihood, a computer-based program will not meet the new legal requirements.

Q: Are There Any Specific Requirements Regarding Who Must Conduct The Training?

A: Yes. The new law is concerned that only qualified trainers be retained for this purpose. On this point, the law states that the training must be provided only by "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation." Be sure to use qualified trainers such as our BRGS staff attorneys who have an extensive background in training and harassment prevention.

Q: What Happens If I do Not Comply?

A: The statute is equivocal on this point. It states that the failure to provide training, in and of itself, is not grounds for liability for harassment under FEHA. Nor will providing training automatically insulate the company from harassment liability. However, it only stands to reason that doing this training is a good investment in risk management. The failure to train managers on this important subject certainly increases the risk of liability in a sexual harassment lawsuit and demonstrates a level of insensitivity to the issue which a claimant's lawyer will often try to exploit at trial. By the same token, employers that aggressively address the issue go a long way toward creating a positive and professional work environment and in all likelihood will go a long way toward preventing these claims from becoming costly lawsuits.

Q: Is The Law Limited To Sexual Harassment Training?

A: Technically, yes. However, existing state law obligates every employer "to take all steps reasonably necessary to prevent every kind prohibited workplace harassment from occurring in the first place" and to timely and effectively correct harassment that does occur. While the new law only addresses sexual harassment, we highly recommend that companies broaden the scope of the training to include all prohibited forms of harassment and retaliation.

Q: Is There Any Reason To Do More Than The 2 Hours Required By Law?

A: Yes. According to the new law, "The training and education required by this section is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination."

Q: How Do I Find A Qualified Trainer?

A: You already know one! At BRGS, we have trained over 15,000 supervisors on workplace harassment and EEO claim prevention. We have the experience, knowledge and qualifications to make a lasting difference in your organization. Our highly trained attorney trainers consistently get very favorable reviews from supervisory employees at all levels. Scheduling your required training programs is easy. All you have to do is call your contact at the firm or ask for our Training Coordinator Linda Gibson at (818) 508-3700 extension 2122 or LGibson@brgslaw.com to discuss availability and pricing.

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