It's that time of year again! We're not talking about winter wonderlands, silver bells, and reindeer. We're talking about S.E.X. Got your attention, right? Actually, we're talking about sexual harassment and how to prevent this dangerous conduct in your workplace. As 2012 winds down, the clock is ticking for a number of California employers to meet the requirements of AB 1825. 1 Even if you are not a California employer, your organization can still greatly benefit from training sessions designed to help your employees recognize and stop inappropriate conduct in its tracks. You don't want to find yourself defending an employment lawsuit two years from now, and chances are, your state will have a law similar to California's in the near future, so why not be preemptive?
My clients (who reside primarily in California, but also in other states) often ask a litany of questions regarding AB 1825. To simplify matters, I have taken their most frequently asked questions, translated the legalese, and broken it down into simple English.
To Whom Does This Law Apply? AB 1825's sexual harassment training requirements apply to organizations that regularly employ 50 or more employees, or that regularly "receive the services of" 50 or more persons. Organizations should not count actual employees only - AB 1825's number threshold requirement actually includes independent contractors and temporary workers.
But We Don't Have 50 Employees... Do We Have To Do It? The short answer is NO. But... it's still a great idea to reinforce your organization's policies against harassment, discrimination, and retaliation in the workplace and to help your employees recognize real life and practical examples of the kind of the conduct or conversations that can get them into trouble. Keep in mind that the California Fair Employment & Housing Act ("FEHA") protects employees from illegal discrimination and harassment in employment based on race, color, religion, sex (pregnancy or gender), sexual orientation, marital status, national origin, ancestry, mental and physical disability (including HIV/AIDS), medical condition (cancer/genetic characteristics), age (40 and above), denial of family and medical care leave, and denial of pregnancy disability leave. FEHA discrimination prohibitions generally apply to any employer regularly employing five or more persons, so even if your organization does not meet the requisite number threshold under AB 1825, your organization could still find itself defending a claim for harassment or discrimination in violation of FEHA. And it's worth noting that there is an important exception to FEHA’s five-employee requirement: The prohibition against harassment more broadly applies to anyone who regularly employs at least one person or regularly receives the services of at least one independent contractor.
How Long Does the Training Have to Be? At least two hours. Sounds like a long time, right? In most cases, you'd be surprised how quickly the training session can go, how fun it actually is, and the amount of new and useful information you will take away.
What Must the Training Consist of or Include? The two hours of basic training must consist of “classroom or other effective interactive training and education regarding sexual harassment," including, information and practical guidance regarding 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. This training must specifically include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
Going beyond basic training (which is what AB 1825 requires as a minimum), the U.S. Supreme Court and EEOC have long suggested that employers train all employees in harassment and discrimination prevention based on all the protected categories - race/color, national origin/ancestry, religion, age, disability/medical condition, etc. Training that specifically focuses only on sexual harassment prevention may have little or no benefit in defending against a harassment claim based on one of the other protected categories.
Who Must Attend the Training? Any person in your organization with supervisory or managerial authority. While AB 1825 does not specifically define "supervisor," qualified trainers typically look to FEHA, which broadly defines "supervisor" as any individual who has the authority "to hire, transfer, suspend, layoff, 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."
What's the Timetable on Training? New supervisory employees must receive sexual harassment training within six months of their assumption of a supervisory position, and thereafter, every two years.
Who Is Qualified to Provide the Training? The law requires that the training be presented by trainers or educators with "knowledge and expertise" in the prevention of harassment, discrimination, and retaliation. The California Fair Employment & Housing Commission has issued guidelines on who is actually qualified to deliver AB 1825-compliant training. They include attorneys specializing in employment law (particularly under FEHA and the federal equivalent, Title VII of the Civil Rights Act of 1964), professors (in law schools, colleges or universities with a post-graduate degree or California teaching credential and experience in a law school, college or university teaching about employment law under FEHA or Title VII) , human resources professionals, or harassment prevention consultants, all of whom must possess at least two years of experience.
But We're Not Even a California Employer... That's okay. Harassment and discrimination prevention training is still applicable and beneficial to organizations of all sizes no matter the state in which they are located. While AB 1825 is the first law of its kind to actually set forth the requirements for effective sexual harassment training, you can bet that other states will follow soon (and indeed, some states have already done so).2
So What Happens If We Don't Do the Training? Fortunately, a claim that an employer failed to provide AB 1825-mandated sexual harassment training does not automatically result in employer liability. However, it is extremely important to point out that FEHA requires that California employers take “all reasonable steps to prevent discrimination and harassment from occurring. 3 So what does this mean for employers? It means thatemployers can actually be held liable for failing to meet the FEHA standard as a separation cause of action, even when there is no underlying discrimination or harassment! 4 And you can bet that if your organization ends up in a lawsuit, the plaintiff will argue that your organization's failure to meet the training requirements imposed by AB 1825 is evidence of the employer's failure to take all reasonable steps to prevent sexual harassment and this could lead, at best, to an order from the Fair Employment & Housing Commission (“FEHC”) requiring the employer to conduct the required training, or at worst, a potential basis for punitive damages in the event of a lawsuit.
It is worth noting that recent court cases demonstrate a clear emerging trend that training may be an essential part of establishing an affirmative defense in harassment litigation or punitive damages in discrimination litigation.
We Provided the Required Training, So We Can't Be Sued, Right? Wrong. The law does not insulate your organization from liability simply because it provided the training. AB 1825 specifies that the required training is "intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination."
What Are Considered "Reasonable Steps"? "Reasonable" is always subjective, but savvy employment attorneys and qualified AB 1825 trainers will tell you that courts will typically look to see: (1) if the organization has up-to-date policies against harassment, discrimination, and retaliation; (2) if the organization disseminates those policies to its employees on a regular basis; (3) whether the organization provides training compliant with AB 1825; (4) if the organization promotes an open door policy for employees to report concerns; and (5) how the organization typically handles reported concerns.
Bottom line, providing routine sexual harassment training is a key part of any employers’ anti-harassment prevention strategy. California employers have a special obligation to be certain that they meet the requirements of AB 1825. Gingerbread, sugarplums and twinkling lights aside, prevention is always the best cure and avoiding a lawsuit altogether is the best holiday present from which your company can benefit!