The recent allegations of sexual harassment against Hollywood producer Harvey Weinstein has renewed awareness of sexual harassment issues in the American public, and hopefully in American employers. California has long required sexual harassment prevention training, but many employers have questions about how it works. Here are some answers.
California law requires that employers train supervisory employees on sexual harassment and abusive conduct prevention every two years. Govt C §12950.1. New supervisory employees must get training within six months of promotion.
Which employers does this apply to? This requirement applies only to entities that regularly employ at least 50 employees or regularly contract for the services of at least 50 people. Under the regulations issued by the California Fair Employment and Housing Commission, the 50 employees need not all be located in California. See 2 Cal Code Regs §11024(a)(5).
Who’s a “supervisory employee”? It’s not defined in the statute, but the definition incorporated into the regulations (2 Cal Code Regs §11024(a)(8)) is that it’s 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 is not of a merely routine or clerical nature, but requires the use of independent judgment.
It’s unclear whether the terms “supervisor” and “supervisory employee” are synonyms. “Supervisory” duties may be broader than the status of being in management for the purposes of respondeat superior. This means that even low-level supervisors should be given the minimum training required by Govt C §12950.1.
What does the training have to cover? The training, which can only be presented by “trainers or educators with knowledge and expertise” in preventing harassment, discrimination, and retaliation, must include the following topics:
- Information and practical guidance on the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment;
- Information about the 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.
Is showing a video enough? No. Merely having a supervisor watch a video or noninteractive web-based product—”show and go”—would not meet the statutory requirements to conduct “classroom … or … effective interactive training and education.” The regulations define acceptable interactive training to include classroom training, e-learning with links to live trainers or educators within two business days, and “webinars” and “other effective interactive training,” and state that instruction must include questions to assess learning and numerous hypothetical scenarios. See 2 Cal Code Regs §11024(a)(2).
Should employers do more? Yes! Government Code §12950.1 provides a floor, not a ceiling, for an employer’s harassment prevention efforts. Employers should go beyond the minimum requirements to provide extra training (additional classes or training longer than two hours) that covers all the protected categories under both federal and state antidiscrimination laws. And effective January 1, 2018, employer training under §12950.1 will have to include harassment based on gender identity, gender expression, and sexual orientation.
What happens to employers who don’t provide the training? Employers aren’t automatically liable under the statute for failing to train a particular individual, but plaintiffs may argue that the failure to meet the training mandate is evidence of an employer’s failure to take all reasonable steps to prevent harassment. And if an employer violates any of the statute’s mandates, the Department of Fair Employment and Housing may issue an order requiring compliance.
An employer’s compliance with the sexual harassment prevention training requirements won’t automatically insulate it from liability for sexual harassment, but it’s intended to prevent harassment from occurring and, if it does occur, the training will hopefully educate all supervisors to identify and handle harassment appropriately.
Get information on all employer training requirements in CEB’s Advising California Employers and Employees, chap 9. And for guidance on bringing and defending sexual harassment claims, turn to CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation, chap 4 and Handling a Wrongful Termination Action.
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