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Fall 2004 E-Newsletter
California Adopts New Sexual Harassment Training Requirements for Large Employers
By: James M. Peterson, Esq. and Shaka H. Johnson, Esq.
For California employers with 50 or more employees, sexual harassment training requirements have been increased and codified. On September 29, 2004, Assembly Bill (AB) 1825 was signed by Governor Schwarzenegger and codified in the Fair Employment and Housing Act at California Government Code §12950.1. The statute was introduced by Assembly Member Sarah Reyes (31st Assembly District), on January 20, 2004, “to help California workplaces ensure they were free of sexual harassment by requiring certain additional minimal training of supervisory employees.”
Existing law requires every employer to take certain action to ensure a workplace free of sexual harassment by implementing certain minimum requirements, including posting sexual harassment information posters at the workplace and obtaining and making available an information sheet on sexual harassment.
The new law, which goes into effect on January 1, 2005, requires employers of 50 or more employees to provide two (2) hours of training and education to all supervisory employees, by January 1, 2006, unless the employer has provided sexual harassment training and education to employees after January 1, 2003. Following initial compliance, the code requires each employer to provide sexual harassment training and education to each supervisory employee once every two (2) years, after January 1, 2006. In addition, this new statute requires the state to incorporate this training into the 80 hours of training provided to all new supervisory employees, using existing resources. Simply stated, employers of 50 or more employees must provide, or have provided, at least two hours of sexual harassment training to supervisory employees between January 1, 2003 and January 1, 2006. At that point, continuing sexual harassment education and training must take place in the form of at least two hours of training for supervisory employees once every two years.
Who is a Supervisor?
The California Fair Employment and Housing Act defines a supervisor as anyone having authority from the employer 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, effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” Cal. Gov’t. Code Section 12926(r).
What Employers are Required to Comply?
The new law defines an “employer” as any person regularly employing 50 or more persons or “regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly.” Thus, when analyzing the 50 “employee” threshold, you should consider independent contractors, temporary workers or other service providers.
What Specific Training Must Be Provided?
The training required by this section should be conducted by trainers/instructors with expertise in the prevention of harassment, discrimination, and retaliation, and must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment as well as the remedies available to victims of sexual harassment in employment. The training and education must be interactive and should include practical examples (i.e. role playing) aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
What is the Effect of Compliance or Non-Compliance?
Although this code section provides a minimum requirement for sexual harassment training, lack of compliance, and the fact that the training does not reach a particular individual does not automatically result in liability on the part of the employer for sexual harassment claims. At the same time, an employer’s compliance with these provisions does not insulate the employer from liability for sexual harassment claims. From a practical perspective the presence or absence of training will be a significant factor in the evaluation of employer liability for sexual harassment. Existing law already makes the employer liable for harassment by supervisors, subject to some limited defenses. The fact that a statute expresses certain minimum training requirements creates per se negligence considerations.
“Per Se Negligence” is a presumption of negligence from the violation of a statute. And although an entity’s negligence can be predicated by the violation of a statute, negligence of a defendant is not presumed from the violation of a statute itself. In order for the violation of a statute to rise to a presumption of negligence, four (4) key elements must all be met. Negligence will be presumed if (1) the defendant violated a statute; (2) the violation legally caused injury; (3) the occurrence resulting in the injury was of a nature that the statute was designed to prevent; and (4) the victim was among the class of persons for whose protection the statute was adopted. Therefore, although a violation of the new sexual harassment code section would appear to be a significant factor in showing liability on the part of an employer, that alone will not result in a presumption of negligence, and it will not result in an automatic imposition of liability.
That being said, if an employer violates the requirements of this code section, the initial penalty is simply that the commission will issue an order requiring the employer to comply with the minimum requirements expressed in the section. The ultimate penalty may be a large settlement or jury verdict.
Higgs, Fletcher & Mack has experts available to assist in providing training or in establishing your own training program. Please contact Jim Peterson for further assistance or information.
Jim Peterson is Chairman and Shaka Johnson is a member of the Employment Practice Group at Higgs, Fletcher & Mack.
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