United States: Mandatory Sexual Harassment Training for Supervisors

California employers now face an additional requirement in the prevention of workplace harassment—mandatory sexual harassment training for all supervisors.

The new law, codified at Section 12950.1 of the California Government Code, applies to employers who "regularly employ 50 or more persons or regularly receive 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, the state, or any political or civil subdivision of the state and cities."

Covered employers must provide the training required under Section 12950.1 by January 1, 2006 to all supervisors who are employed as of July 1, 2005. Any employer who has provided training and education to a supervisory employee since January 1, 2003 is not required to provide additional training to that employee by January 1, 2006. However, those who are hired or promoted after July 1, 2005 must receive training within six months of assuming the supervisory position. Finally, after January 1, 2006 employers must provide training and education to each supervisory employee at least once every two years.

Interestingly, nothing in Section 12950.1 requires that subordinate non-supervisor employees receive training. The training applies solely to "supervisory employees." Unfortunately, there is no definition of "supervisory employee" in Section 12950.1; however, Section 12926(r) broadly defines "supervisor" as "any 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 recommend that action."

The new law similarly neglects to define "training and education." Rather, the law generally outlines that compliance requires "at least two hours of classroom or other effective interactive training and education regarding sexual harassment" and "shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment." The statute mandates that such "training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation."

The penalty for violating Section 12950.1 is not onerous: "if an employer violates the requirements of this section, the commission shall issue an order requiring the employer to comply with these requirements." Furthermore, the fact that mandated training and education did not reach a particular individual shall not in and of itself result in liability to an employer. Nonetheless, providing such training and education does not insulate an employer from liability.

Compliance with Section 12950.1 and training for all employees

Although the penalty for noncompliance would seem to be relatively minor, the implication of noncompliance in a litigation setting could be significant. A plaintiff’s lawyer likely will seek and be entitled to receive evidence of any training that was done in order to comply with Section 12950.1 during discovery. If the employer cannot establish compliance with the training requirements, the plaintiff’s lawyer will encourage the jury to consider that fact in its deliberations. Even though noncompliance alone does not establish liability, the employer will likely be unable to conceal its noncompliance.

As noted above, Section 12950.1 does not require training for non-supervisor employees; however, employers should consider training all employees to position themselves to defend claims of sexual harassment under federal and state law. The U. S. Supreme Court and the Equal Employment Opportunity Commission have long recommended sexual harassment training for all employees to ensure that all are aware of their rights and responsibilities. Indeed, the existence of such training can be compelling evidence that an employer exercised reasonable care to prevent and correct sexually harassing behavior. Ultimately, this may be a critical aspect to successfully defending a plaintiff’s claim under Title VII (federal law). Such was the case in Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton. This may also be true under California law, such as in State Department of Health Services v. Superior Court (applying the Ellerth/Faragher affirmative defense to claims under California’s Fair Employment and Housing Act).

In order for an employer to take advantage of the affirmative defense (either under Title VII or the Fair Employment and Housing Act), it must establish that the employee unreasonably failed to take advantage of measures provided by the employer to prevent and correct sexual harassment. Obviously, producing evidence will be more difficult for an employer if the complaining employee never received sexual harassment training. Therefore, even though Section 12950.1 does not mandate training of all employees, employers should consider providing such training to their entire workforce.

January 1, 2006 is right around the corner. California employers should promptly begin planning and developing training programs, including the systems necessary to accurately record and track compliance by all new and existing supervisory employees. Furthermore, employers should revise their policies, procedures and employee handbooks to reflect the mandatory training requirements of Section 12950.1. Compliance (and proving such compliance) will be integral to defeating or limiting exposure to sexual harassment claims in the future.

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