Preventing Workplace Harassment
A. Overview of California law requiring sexual harassment training for supervisors
On September 30, 2004, California Governor Arnold Schwarzenegger signed into law a bill called AB 1825. This new law requires employers who operate in California and who employ 50 or more persons to provide all supervisory employees two hours of sexual harassment training every two years. Employers must complete the first round of training for supervisors by January 1, 2006.
B. Content of HR to Go Preventing Workplace Harassment & Discrimination
HR to Go’s course, Preventing Workplace Harassment & Discrimination, provides employees the information they need to prevent and report sexual harassment and other forms of workplace harassment, regardless of the state in which employees work. Information is provided to employees not only on federal law but also on the legally protected characteristics in each state and in many localities. To learn more about registering for this course, click here.
Preventing Workplace Harassment.& Discrimination is designed to meet California’s AB 1825 requirement that the training:
- be two hours long;
- be effective and interactive;
- provide information and practical guidance to learners;
- cover relevant federal and state law;
- explain prohibitions against and the prevention and correction of sexual harassment;
- include practical examples to instruct supervisors in the prevention of harassment, discrimination and retaliation; and
- describe remedies available to victims of sexual harassment.
To comply with California AB 1825, many course providers simply lengthen their courses’ instructional time to meet the laws’ two-hour requirement. HR to Go decided to take a different approach. Instead of repeating the same concepts and principles to meet the two-hour requirement, HR to Go explores additional gray areas and complicated scenarios. For example, the course includes case studies that allow the supervisor to apply what he or she learns to the nuances of a difficult conversation with an employee who may be being harassed by a co-worker.
C. Will HR to Go’s course help us ensure that we train all current supervisors and all new supervisors within 6 months of hire?
California AB 1825 requires employers to train all current supervisors by January 1, 2006, and it imposes an ongoing obligation for employers to train new supervisory personnel within six months of their assumption of a supervisory position. If the employer chooses to provide this training in-person in a classroom setting, it must ensure that it provides a class at least once every six months, and that all persons who have obtained a supervisory position in the previous six months attend that class.
D. Will HR to Go offer refresher courses for supervisors every two years as required by California AB 1825?
All supervisory employees must be provided the mandated training once every two years. The law makes clear that the requirement that two hours of sexual harassment training, be provided to supervisors every two years represents a minimum threshold. Given court decisions and EEOC’s guidelines that have indicated that training on sexual harassment and other forms of workplace harassment must be provided “periodically,” prudent employers should strongly consider providing harassment prevention training every year.
HR to Go offers refresher courses for both supervisory and non-supervisory employeeseach year. The refresher courses remind employees of the major principles that they learned from previous HR to Go courses on harassment prevention, address current topics relating to workplace harassment, and reinforce the employer’s commitment to a harassment-free workplace.
In addition, to meet the specific requirements of California AB 1825, HR to Go provides a new course designed specifically for California supervisors every two years.
E. Is HR to Go an expert in EEO law as AB 1825 requires for the training provider?
The law specifically requires that the training-be it instructor-led training or online training-be provided by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” The law, of course, merely codifies what courts around the country have said for years. Specifically, courts have made clear that employers must ensure that the training provider:
- Completely understand the complex body of harassment and discrimination laws; and
- Keep up-to-date with new cases that change the interpretations of these laws.
HR to Go training is all developed and delivered by leading experts in harassment, discrimination, and retaliation law. These experts include HR to Go’s President, Karen O’Hara, who has been in the Human Resources field for over 20 years and has dealt with numerous
harassment and discrimination complaints and lawsuits.
F. Does HR to Go’s course meet California AB 1825’s requirement that the training be “effective and interactive”?
California AB 1825 specifically requires the training to be “effective and interactive.” Properly designed online harassment prevention courses can meet the “effective” requirement. Indeed, HR to Go’s course requires the user to demonstrate that he or she has learned the information presented before being allowed to complete the course.
G. Which employers are covered by AB 1825?
The law applies to all employers who operate in California and who regularly employ 50 or more employees or independent contractors. For example, if an employer has 40 employees and regularly receives the services of 15 temporary service workers, the employer is covered.
Assuming that the employer employs 50 or more persons within the state of California, the employer is covered even if the employer is headquartered outside of California. There is some debate regarding whether the law applies to employers who do not employ 50 persons within the state of California but who do employ 50 or more persons located both inside and outside of California. The text of the legislation does not clarify this point, and some cases interpreting other state employment discrimination laws appear not to count such out-of-state employees. However, HR to Go contacted the California Fair Employment and Housing Commission (“FEHC”) and was informed that the FEHC was taking the position that the law applies to any employer who employs 50 or more persons, even if the employer employs fewer than 50 people in California. For employers in this situation, it is better to be safe than sorry, especially when the training requirements in the California law are reasonable standards for any prudent employer to follow.
H. Which employees are considered “supervisors” that must be trained?
While the legislation does not specifically define who is included in its definition of “supervisory,” California’s anti-discrimination law defines “supervisor” to include any individual with 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 . . . requires the use of independent judgment.”1 As a result, employers should provide supervisory training be required by this law to any employee who has responsibility for any of the above personnel actions, even if the employee does not have an official supervisory title.
I. Should employers also provide training on other forms of unlawful workplace harassment?
While the new California law requires employers to provide two hours of sexual harassment training to supervisors, the laws also makes clear that this training requirement is intended to represent a “minimum threshold” and does not “relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination.”
Harassment and discrimination based on sex is just one of the many types of discrimination protected by state and federal law. After the Supreme Court’s landmark decisions in the 1998 Faragher and Ellerth cases, federal court decisions and EEOC Guidelines have made clear that employers must ensure that harassment prevention training covers not just sexual harassment but all types of unlawful harassment and retaliation.
Indeed, simply training on sexual harassment will not protect you from other types of harassment or retaliation claims. For example, in Reed v. Cracker Barrel Old Country Store, the jury found that the plaintiff had proved her case of sexual harassment but that the employer was not liable for the harassment because it had made reasonable efforts to prevent harassment, including providing harassment prevention training. The jury, however, found that the employer had retaliated against the plaintiff and awarded punitive damages for the retaliation. The employer argued that its training and other efforts to prevent sexual harassment should also protect it from punitive damages against retaliation. The court disagreed. According to the court,
Title VII clearly prohibits more than sexual harassment….[and] punitive damages are also available under Title VII for more than just sexual harassment….[An employer’s] good-faith compliance must relate to the specific claim being raised under Title VII. (emphasis added).
While sexual harassment lawsuits tend to grab the headlines, employers’ risk of harassment lawsuits based on other protected characteristics is actually greater. Of the 109,472 harassment charges that were filed with the EEOC during the 1990s, 33% were sex-based, 14% were national-origin-based, and 43% were race-based. Employers can expect harassment charges based on age to increase as the “baby boomers” age. In addition, since September 11, 2001, the number of religious and national origin harassment and discrimination claims filed with the EEOC has increased dramatically. The EEOC reports that between October 1, 2001 and September 30, 2002, allegations of religious bias were up 21%, age bias were up 14.5%, and national origin bias were up 13% over the previous year.
Thus, not only must California employers provide supervisors two hours of training every two years on sexual harassment, but they also must periodically provide additional training on other forms of workplace harassment and discrimination to all employees.
J. Should employers also provide workplace harassment training to non-supervisory employees?
While the new California law only directly spells out California employers’ responsibilities to provide sexual harassment training to supervisors, employers still have a responsibility under California and federal law to provide workplace harassment prevention training periodically to non-supervisory employees as well.
In addition to the requirements of AB 1825, the California Fair Employment and Housing Act (“FEHA”) requires employers to take “all reasonable steps to prevent harassment from occurring.”3 According to the California Department of Fair Employment and Housing (“DFEH”), such reasonable steps include providing all employees sexual harassment training. Indeed, according to the DFEH, a sexual harassment training program for all employees “is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.” According to the DFEH, “all employees should be made aware of the seriousness of violations of the sexual harassment policy.” In addition to sexual harassment training, all employees must receive from their employers a copy of the DFEH pamphlet “Sexual Harassment is Forbidden by Law” (DFEH-185) or an equivalent document.
Under federal law, EEOC guidelines indicate that employers periodically “should provide training to all employees to ensure they understand their rights and responsibilities” relating to workplace harassment. For Employers who fail to provide harassment prevention training to all employees may be unable to raise an affirmative defense to a harassment lawsuit.
Thus, California employers should continue to provide periodic workplace harassment prevention training to all employees-not just supervisors. The training provided to non-supervisors, however, may be shorter than two hours and does not have to specifically address each of the topics listed in AB 1825.
HR to Go’s Preventing Workplace Harassment & Discrimination course addresses all of the topics relevant to non-supervisory employees.
To learn more about the Preventing Workplace Harassment & Discrimination – contact us at (916) 444-6200 or email firstname.lastname@example.org