Sexual Harassment Training - “An Ounce of Prevention...”

Sexual harassment is among the most serious of workplace problems. It can be devastating for employees, and can be incredibly expensive and damaging for employers. California recently passed legislation showing the importance of preventing sexual harassment at work. The recently enacted California Government Code section 12950.1 requires that employers comply with certain sexual harassment training rules and procedures.

Which employers must provide training?

This law applies to employers with 50 or more employees. It is not required that all 50 employees be in California.

Who must be trained?

Training must be given to all employees who are employed as supervisors as of July 1, 2005. All employees who become supervisors after July 1, 2005 must receive training within six months of assuming a supervisory position.

Who is a supervisor?

The new law does not define the word “supervisor.” Yet, the Fair Employment and Housing Act defines a “supervisor” as, among other things, one who has the authority to hire or fire, reward or discipline other employees, direct other employees, or exercise independent judgment. This is a broad definition, and whether an employee is exempt or non-exempt for purposes of wages is not controlling.

Employers would be wise in construing “supervisors” liberally - if there is doubt as to whether an employee has a “supervisory position,” the safest bet is to train that employee.

What type of training is sufficient?

The law requires that the training be of the “classroom” variety or other “interactive training.” California’s Department of Fair Employment and Housing has strongly suggested that web-based training is sufficient as “interactive” training. However, if a trainer is not actually present, one should be available to answer questions within two business days after the question is asked. Furthermore, the training must include practical examples dealing with prevention of harassment, discrimination and retaliation.

Who can train?

Three categories of people are qualified to train: (1) attorneys, (2) professors or instructors, and (3) Human Resource professionals or Harassment Prevention Consultants. For each category, the trainers must have two years of experience.

How often must employees be trained?

Employees covered by the law must be trained every two years.

How much training is needed?

If the training is conducted as “classroom training,” the actual time instructors spend teaching must total two hours, excluding breaks. If the training is web-based, it must take at least two hours to complete the course.

What records need to be kept?

The biennial training can be tracked by the individual employee, or by using a “training year” method in which the employer chooses training years for all supervisors. Employers must remember, however, that new supervisory employees must be trained within six months of hire or promotion. A record of who received the training, when it took place and what type, and who gave the training must be kept for two years.

Important final points

Proper training does not completely safeguard employers from sexual harassment lawsuits. Also, failure to provide training does not, in and of itself, make an employer liable for sexual harassment. However, the Fair Employment and Housing Commission can order an employer to give proper training. Yet if employers fail to properly train supervisory employees, a court could find that such violates the state’s public policy, creating even more liability if an employer is sued for sexual harassment. Ensuring that employees are properly trained requires some effort and planning - yet in this regard, an ounce of prevention is clearly worth a ton of litigation.