Oct 14, 2004 Employment Discrimination

New California Law Requires Sexual Harassment Training For Supervisors Every Two Years

On September 30, 2004, Governor Schwarzenegger signed into law AB1825, which amends California’s Fair Employment and Housing Act (“FEHA”) by requiring employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors at least once every two years. (See┬áCalifornia Government Code section 12950.1). The law does not specify that the 50 employees must be within California, and the prudent approach is therefore to assume coverage if an employer has 50 or more employees nationwide, even if only a few work in California.

The new law provides some basic guidelines as to the type of training required. Specifically, there must be “classroom or other effective interactive training” presented by trainers or educators with knowledge and experience in the prevention of harassment, discrimination and retaliation. In addition, the training must include “practical guidance” regarding federal and state laws that prohibit sexual harassment, including prevention and correction of harassment, and the remedies available to sexual harassment victims. The law also requires employers to use “practical examples” aimed at preventing harassment, discrimination, and retaliation.”

Although AB1825 does not define “supervisor,” the definition of “supervisor” contained elsewhere in FEHA most likely applies. Specifically, FEHA defines “supervisor” as an individual having 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.”

The law requires that training be provided by January 1, 2006, for all supervisors who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position. Notably, any employer who provided sexual harassment training and education to employees after January 1, 2003, is not required to provide training and education by the January 1, 2006 deadline. After January 1, 2006, however, all employers covered by this provision will be required to provide sexual harassment training and education to each supervisory employee once every two years.

If a covered employer violates the requirements of this provision, the Fair Employment and Housing Commission is empowered to issue an order requiring the employer to comply with the requirements. No other penalty is provided in this provision. In addition, notwithstanding the requirement under FEHA to prevent and correct unlawful discrimination and harassment, AB 1825 states that a claim that a particular individual was not trained “shall not in and of itself result in the liability of the employer in an action for sexual harassment.” That stated compliance with the training requirement is also not an absolute defense to liability for sexual harassment.

In light of this new law, employers should review their records to determine when sexual harassment training was last provided to their supervisors. If the training was comparable to what this new law requires, employers may focus their training on newly hired or promoted supervisors between now and January 1, 2006. Employers that have not conducted supervisory training since January 1, 2003, should make arrangements to implement AB 1825 as soon as practicable. Because discrimination and harassment cases frequently focus on the employer’s efforts to prevent the complained of conduct, there are good reasons to include in the training other types of discrimination and harassment (such as race, age, disability, and religion), beyond those required by the statute. In addition, employers should develop a system to monitor which supervisors have completed the training so that any questions about compliance in the future can be easily addressed. Employers should also retain the training materials.

For further information, please contact any of the attorneys in our San Francisco office, all of whom have considerable experience providing these types of training. You will also find on our website general information about our training programs.