Despite the attention devoted to it in both the popular and legal press, sexual harassment remains a significant problem in the workplace. The reader is invited to review our web article on the basic law concerning Sexual Harassment in the Workplace. California leads most states in the United States in creating and enforcing strict statutes regarding sexual harassment in the employment context.
Yet, during the 2002-2003 fiscal year sexual harassment cases represented 22% of all claims filed with the California Department of Fair Employment and Housing. Certain experts estimate that sexual harassment costs the average Fortune 500 company over $6 million a year in indirect costs alone, such as lost productivity and absenteeism.
The California legislature responded in 2004 with a bill signed into law by Governor Schwarzenegger on September 30, 2004 that now requires many California employers to provide sexual harassment trainingto its “supervisory personnel.”
The New Law:
1. Which Employers are Covered by the New
By its own terms, the new law applies to “any person regularly employing 50 or more persons” and/or “those regularly receiving the services of 50 or more persons providing services pursuant to a contract.” Thus, for purposes of calculating whether an employer is covered by the new law, its independent contractors must be included. The statute is silent as to whether only employees and independent contractors within the state of California must be counted to determine if the threshold number of 50 is met.
Accordingly, it is not clear whether a company with 1 employee in California and 49 employees in New Jersey must comply with the new training obligations. Until this apparent ambiguity is sorted out by further legislation or judicial interpretation, affected employers are advised to err on the side of caution and provide the mandatory training to all supervisory employees located in California, or consult with legal counsel.
2. Who Qualifies as a Supervisor Subject to the Training Requirement?
The new law does not define “supervisor” for purposes of identifying who is subject to its requirements. However, the definition of supervisor found elsewhere in the law provides reliable guidance. “Supervisor” is defined as any individual who has the authority to, “hire, transfer, 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 is not of a merely routine or clerical nature, but requires the use of independent judgment.” Given the increased degree of liability to which an employer is exposed for sexual harassment by a supervisor, the prudent employer will provide the required sexual harassment training to any employee who even approaches this definition of a supervisor.
3. What is the Required Content of the Training ?
The required training must be at least two hours in length and be conducted in a classroom setting or through some other “interactive means. The training must provide instruction on both state and federal laws regarding sexual harassment as well as instruction about the prevention and correction of harassment and the remedies available. Training must include discussion of “practical examples” of harassment. Although the statute itself only requires training in the prevention of sexual harassment, our office recommends that employers would be well advised to protect themselves further by adding appropriate training in combating discrimination, harassment and employer retaliation on the basis of race, age, disability, etc. to the training curriculum.
The law requires only that the training be conducted by persons with “knowledge and expertise in the prevention of harassment, discrimination and retaliation.” There is no requirement that outside professionals trained specifically for this purpose be used. The employer’s inside human resources personnel, or inside or outside employment counsel may have sufficient knowledge and expertise to meet the statute’s criteria.
The “interactive” component means that employers must provide more than a manual, PowerPoint presentation or video. Whatever method is chosen must include the active participation of the trainees. A video format or on-line seminar may qualify if it contains an interactive feature.
4. What is the Required Frequency of the Training?
Employers must provide training to all supervisory personnel within one year of January 1, 2005. Any employer who provided training, which complies with the new law, between January 1, 2003 and January 1, 2005 is deemed in compliance with the initial requirement. After the initial training, all subsequently promoted employees must be provided training within six months of being promoted to a supervisory position. In addition, employers must provide refresher training every two years.
Employers are faced with the task of tracking promotions and coordinating training schedules so that each newly promoted employee receives timely post promotion training and that all supervisory employees receive timely refresher training.
5. What are the Penalties for Failure to Comply?
The statutory penalty for failure to comply is an order to comply from the California Department of Fair Employment and Housing. There are no monetary sanctions for failing to provide the required training. The real penalty for failure to comply is the evidentiary consequences faced by the employer in the event of a sexual harassment lawsuit. The ability of a plaintiff to demonstrate that the law was not followed is a powerful tool for the claimant and it would be foolish, indeed, for any employer to risk that liability by failing to comply with the law.
The law specifically provides that the fact that a particular alleged harasser did not receive the required training will not result in automatic liability; nor will an employer’s compliance with the training requirements automatically insulate that employer from liability. However, plaintiffs’ lawyers would be permitted to introduce into evidence the fact that no training was provided and a jury would be allowed to consider that evidence in determining whether the employer used reasonable care to prevent and correct sexual harassment in its workplace.
Comprehensive sexual harassment polices and complaint procedures, employee familiarization with those policies and procedures and thorough investigations of sexual harassment allegations are no longer viewed in the law as sufficient measures to effectively prevent harassment in the workplace or to protect the employer in the event of a sexual harassment lawsuit.
Those employers covered by the new law who did provide some form of training will now have to train more often and by means in conformity with the new law. Those covered employers who did not train their supervisory employees in sexual harassment prevention, detection and correction will have to institute training programs in compliance with the new law. Failure to do so will open the door for far more dangerous litigation in the future from disgruntled employees and their legal counsel.