SEXUAL HARASSMENT TRAINING
June 27 – June 30, 2007
Maki Daijogo
Miller Law Group, PC
San Francisco, California
Larkspur, California
I.
INTRODUCTION
Sexual harassment training has long been an important component of any employer's antidiscrimination and harassment program. Such training may prevent sexual harassment lawsuits
in the first place, and it can help an employer launch a successful defense or limit damages if a
claim is filed.
II.
IS SEXUAL HARASSMENT TRAINING NECESSARY?
In 1998, The U.S. Supreme Court endorsed sexual harassment training in two landmark
decisions, Burlington Industries, Inc. v. Ellerth1 and Faragher v. City of Boca Raton.2 These
cases tied an employer’s ability to assert an affirmative defense to its efforts to train employees
on its anti-harassment policy and complaint procedures. Although Title VII does not mandate
sexual harassment training, the Supreme Court’s rulings emphasize the importance of educating
the workforce on sexual harassment policies and prevention. In addition, several states have
either mandated sexual harassment training for public and/or private employers. For example,
California, Connecticut and Maine have mandatory statutory sexual harassment training
requirements for both public and private employers.3
III.
AN ILLUSTRATION: CALIFORNIA SEXUAL HARASSMENT TRAINING
California’s sexual harassment training law is one example of legislation that currently applies in
a limited number of states, and may apply more expansively in the years to come. In 2005,
Governor Schwarzenegger signed into law AB 1825, which amended California’s Fair
Employment and Housing Act (FEHA) to require biennial sexual harassment training and
education for supervisory employees. This law contains some specific requirements regarding
which employers are covered, which employees must be trained, the content and timing of the
training, and the repercussions for failing to comply. 4
1
524 U.S. 742 (1998)
2
524 U.S. 775 (1999)
3
Cal. Gov. Code §12950 (attached); Conn. Gen Stat. § 46a-54(15)(B)) (attached); Conn. Agencies Regs.
§ 46a-54-204); Me. Rev. Stat. § 807(3)(attached).
At the time these materials were prepared, California’s Fair Employment & Housing Commission (FEHC) was still
in the process of obtaining approval of its “Final Proposed Regulations” (attached). The FEHC adopted its Final
Proposed Regulations on April 23, 2007, and they were submitted to the Office of Administrative Law for approval.
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Which employers are covered by California’s AB 1825?
AB 1825 applies to public and private employers that employ 50 or more employees or
independent contractors. Specifically, the law states that it applies to "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, the state, or any political or civil subdivision of the state, and cities."5
Under the FEHC’s Final Proposed Regulations, for purposes of determining whether an
employer meets the 50-person threshold, a “contractor” must perform services for an employer
for each working day in 20 consecutive weeks in the current or preceding calendar year. The
Final Proposed Regulations also point out that there is no requirement that the 50 employees or
contractors work at the same location or all work or reside in California.
Which supervisors must receive the new sexual harassment training?
The law states that the sexual harassment training must be provided to "supervisory employees."
The Final Proposed Regulations apply the definition of "supervisory employee" contained in the
FEHA, i.e., anyone with authority to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or the responsibility to direct other employees,
adjust their grievances, or to effectively recommend that action. The exercise of authority must
require independent judgment and not be merely routine or clerical.
Note that this definition is very broad and applies regardless of whether employees have been
classified as exempt or nonexempt under the California or federal wage and hour laws.
The Final Proposed Regulations define the term “supervisors” as supervisors located in
California. The Final Proposed Regulations also specifically provide that attending training does
not create an inference that an employee is a supervisor or that a contractor is an employee or a
supervisor.
What is the timeline for providing the training?
AB 1825 requires that supervisory employees who were employed as of July 1, 2005, receive a
minimum of two hours of sexual harassment training and education by January 1, 2006, and once
every two years thereafter. An employer that has already provided sexual harassment training to
its supervisory employees after January 1, 2003 was not required to provide training a second
time by the January 1, 2006 deadline. Also, as of January 1, 2006, new supervisory employees
must receive the training within six months of assuming their new position.
What are the requirements for the content of the training?
The law requires that the training must consist of at least two hours of classroom or other
"effective interactive" training and education regarding sexual harassment. The Final Proposed
Regulations provide that the training and education must cover all of these elements:
1.
A definition of unlawful sexual harassment under the Fair Employment and Housing
Act and Title VII of the federal Civil Rights Act of 1964. In addition to a definition of
sexual harassment, an employer may provide a definition of and train about other forms
In California, the “state” includes any public university system, including the University of California, and any
community college district. Cal. Const. Art. 1, §31.
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of harassment covered by the FEHA, as specified at Government Code section 12940,
subdivision (j), and discuss how harassment of an employee can cover more than one
basis.
2.
FEHA and Title VII statutory provisions and case law principles concerning the
prohibition against and the prevention of unlawful sexual harassment, discrimination
and retaliation in employment.
3.
The types of conduct that constitutes sexual harassment.
4.
Remedies available for sexual harassment.
5.
Strategies to prevent sexual harassment in the workplace.
6.
“Practical examples,” such as factual scenarios taken from case law, news and media
accounts, hypotheticals based on workplace situations and other sources which
illustrate sexual harassment, discrimination and retaliation using training modalities
such as role plays, case studies and group discussions.
7.
The limited confidentiality of the complaint process.
8.
Resources for victims of unlawful sexual harassment, such as to whom they should
report any alleged sexual harassment.
9.
The employer’s obligation to conduct an effective workplace investigation of a
harassment complaint.
10. Training on what to do if the supervisor is personally accused of harassment.
11. The essential elements of an anti-harassment policy and how to utilize it if a harassment
complaint is filed. Either the employer’s policy or a sample policy shall be provided to
the supervisors. Regardless of whether the employer’s policy is used as part of the
training, the employer shall give each supervisor a copy of its anti-harassment policy
and require each supervisor to read and to acknowledge receipt of that policy.
12. Employers should be aware that AB 1825 only establishes a minimum threshold for
sexual harassment training. It does not prevent employers from providing additional or
more elaborate training as the employer may deem necessary to address the problem of
workplace harassment and unlawful discrimination.
Who can conduct the training?
AB 1825 requires that the training and education be presented by trainers or educators with
knowledge and expertise in the prevention of workplace harassment, discrimination, and
retaliation. The Final Proposed Regulations provide that a trainer must fall into one or more of
the following categories:
1.
“Attorneys” admitted for two or more years to the bar of any state in the United States
and whose practice includes employment law under the Fair Employment and Housing
Act and/or Title VII of the federal Civil Rights Act of 1964; or
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2.
“Human resource professionals” or “harassment prevention consultants” working as
employees or independent contractors with a minimum of two or more years of
practical experience in one or more of the following: (a) designing or conducting
discrimination, retaliation and sexual harassment prevention training; (b) responding to
sexual harassment complaints or other discrimination complaints; (c) conducting
investigations of sexual harassment complaints; or (d) advising employers or
employees regarding discrimination, retaliation and sexual harassment prevention; or
3.
“Professors or instructors” in law schools, colleges or universities who have a postgraduate degree or California teaching credential and either 20 instruction hours or two
or more years of experience in a law school, college or university teaching about
employment law under the Fair Employment and Housing Act and/or Title VII of the
federal Civil Rights Act of 1964.
Does the training have to be conducted in-person?
No. The law states that the training must consist of "classroom or other effective interactive
training and education." The Final Proposed Regulations recognize that “effective interactive
training” may be: (1) live classroom training; (2) “e-learning” training; (3) “Webinar” training.
For any of these training methods, the instruction must include questions that assess learning,
skill-building activities that assess the supervisor’s application and understanding of content
learned, and numerous hypothetical scenarios about harassment, each with one or more
discussion questions so that supervisors remain engaged in the training.
Must the training consist of two-hour sessions?
No. AB 1825 states that supervisory employees must receive two hours of training every two
years. However, the legislation does not specifically state that the training must be conducted in
continuous two-hour blocks. The Final Proposed Regulations provide that training does not need
to be completed in two consecutive hours, but that the minimum duration of a training segment
for classroom training or webinars is 30 minutes.
E-learning courses may include
“bookmarking” features which allow pauses in training as long as the actual e-learning program
is two hours.
What are the repercussions for an employer that fails to comply?
If an employer violates the provisions of AB 1825, the California Fair Employment and Housing
Commission may issue an order requiring the employer to comply. The statute does not specify
any monetary penalties for violations.
Will compliance with AB 1825 insulate an employer from sexual harassment liability?
Compliance with AB 1825 alone will not insulate an employer from liability for sexual
harassment, whether committed by a supervisory or non-supervisory employee. Conversely, a
claim that the training required by the new law did not reach a particular supervisor will not
automatically result in an employer's liability for sexual harassment. Note, however, that should
an employer be sued for sexual harassment, evidence that the alleged harasser did not receive
training could have a strong influence on the outcome of the case.
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IV.
WHAT SHOULD EMPLOYERS DO?
Here is a checklist of steps employers should take to develop a sexual harassment training
program.
1. Determine who should be trained.
As discussed, employers in California must provide training to "supervisory employees,"
which is a very broad term. If you are in doubt as to whether a particular employee
qualifies as a "supervisory employee," the prudent approach is to include them in the
training.
Although AB 1825’s training mandate applies specifically to supervisory employees,
employers that require all staff members to undergo comprehensive anti-harassment and
anti-bias training will be in a stronger position to defend claims and to prevent them in
the first place.
2. Draft a timeline for training current supervisors.
Under AB 1825, the initial training for supervisors employed as of July 1, 2005, had to
take place by January 1, 2006, except that employers did not have to retrain supervisors
who received training after January 1, 2003. All employees should undergo training at
least once every two years, and new supervisors must receive training within six months
of their hire.
3. Implement a recordkeeping system.
You should keep accurate records regarding who has been trained, the dates of training,
and the duration of each training session. You should also build in a reminder system to
ensure that supervisory employees receive the requisite training every two years, as well
as a way to ensure that new supervisors receive training within six months of their
promotion or hire.
In addition, maintain full records as to the content of the training program, program
materials, and the identity, background, and qualifications of the presenters.
4. Evaluate training programs.
Whether you're looking for a new program or evaluating one that you already have in
place, be sure to assess whether the program covers all of the required content under AB
1825 and meets the requirement that the training be interactive.
Any program you are considering should also cover all other types of harassment
(including sexual orientation, gender, religion, race, national origin, color, age, and
disability), workplace discrimination and retaliation, and your own policies and
procedures. Note that, beyond the specific mandates set by AB 1825, the federal Equal
Employment Opportunity Commission has published guidelines recommending that
employers train supervisors and managers on the company's anti-harassment policy and
complaint procedures, including the types of conduct that violate the policy, the
seriousness of the policy, the responsibilities of supervisors and managers when they
learn of alleged harassment, and the prohibition against retaliation.
Miller Law Group has assisted in developing the content for AB 1825-compliant training
offered by Parachute, an on-line training provider.
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5. Assess qualifications of the presenters and compare costs.
AB 1825 requires that trainers/presenters have knowledge and expertise in the area of
sexual harassment, discrimination, and retaliation prevention. It will be critical for
employers to evaluate whether trainers meet these qualifications, whether the trainer is
from the employer's human resources department, an attorney or a training program
vendor. A presenter that is experienced in training, yet has no practical expertise in
handling workplace harassment matters, would not meet the qualifications set by AB
1825.
6. Periodically reevaluate the effectiveness of your program.
As discussed, AB 1825 sets only a floor, not a ceiling, for an employer's efforts to create
a workplace free of illegal harassment. Thus, employers are encouraged to continually
evaluate their internal programs to determine whether they need to do more to educate
employees in order to prevent and correct instances of unlawful harassment and
discrimination.
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CALIFORNIA GOVERNMENT CODE
Section 12950.1
(a) By January 1, 2006, an employer having 50 or more employees shall provide at least two
hours of classroom or other effective interactive training and education regarding
sexual harassment to all supervisory employees in California who are employed as of July 1,
2005, and to all new supervisory employees within six months of their assumption of a
supervisory position. Any employer who has provided this training and education to
a supervisory employee after January 1, 2003, is not required to provide training and education
by the January 1, 2006, deadline. After January 1, 2006, each employer covered by this section
shall provide sexual harassment training and education to each supervisory employee in
California once every two years. The training and education required by this section 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 training and
education shall also include practical examples aimed at instructing supervisors in the prevention
of harassment, discrimination, and retaliation, and shall be presented by trainers or educators
with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
(b) The state shall incorporate the training required by subdivision (a) into the 80 hours of
training provided to all new supervisory employees pursuant to subdivision (b) of Section
19995.4, using existing resources.
(c) For purposes of this section only, "employer" means 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, the
state, or any political or civil subdivision of the state, and cities.
(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and
education required by this section did not reach a particular individual or individuals shall not in
and of itself result in the liability of any employer to any present or former employee or applicant
in any action alleging sexual harassment. Conversely, an employer's compliance with this
section does not insulate the employer from liability for sexual harassment of any current or
former employee or applicant.
(e) If an employer violates this section, the commission shall issue an order requiring the
employer to comply with these requirements.
(f) The training and education required by this section 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.
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GENERAL STATUES OF CONNECTICUT
Sec. 46a-54. Commission powers.
The commission shall have the following powers and duties:
….
(15) … (B) to require an employer having fifty or more employees to provide two hours of
training and education to all supervisory employees within one year of October 1, 1992, and to
all new supervisory employees within six months of their assumption of a supervisory position,
provided any employer who has provided such training and education to any such employees
after October 1, 1991, shall not be required to provide such training and education a second time.
Such training and education shall include information concerning the federal and state statutory
provisions concerning sexual harassment and remedies available to victims of sexual harassment.
As used in this subdivision, "sexual harassment" shall have the same meaning as set forth in
subdivision (8) of subsection (a) of section 46a-60, and "employer" shall include the General
Assembly….
MAINE REVISED STATUTES
§807. Requirements
In addition to employer responsibilities set forth in rules adopted under Title 5, section 4572, all
employers shall act to ensure a workplace free of sexual harassment by implementing the
following minimum requirements. [1991, c. 474, §2 (new).]
….
3. Education and training. In workplaces with 15 or more employees, employers shall
conduct an education and training program for all new employees within one year of
commencement of employment that includes, at a minimum, the following information: the
illegality of sexual harassment; the definition of sexual harassment under state and federal laws
and federal regulations, including the Maine Human Rights Act and the Civil Rights Act of
1964, 42 United States Code, Title VII, Sections 2000e to 2000e-17; a description of sexual
harassment, utilizing examples; the internal complaint process available to the employee; the
legal recourse and complaint process available through the commission; directions on how to
contact the commission; and the protection against retaliation as provided under Title 5, section
4553, subsection 10, paragraph D. Employers shall conduct additional training for supervisory
and managerial employees within one year of commencement of employment that includes, at a
minimum, the specific responsibilities of supervisory and managerial employees and methods
that these employees must take to ensure immediate and appropriate corrective action in
addressing sexual harassment complaints.
Education and training programs conducted under this subsection by the State, a county or a
municipality for its public safety personnel, including, but not limited to, law enforcement
personnel, corrections personnel and firefighters, may be used to meet training and education
requirements mandated by any other law, rule or other official requirement.
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USEFUL SEXUAL HARASSMENT TRAINING
RESOURCES ON THE INTERNET
Parachute, Managing Harassment in the Workplace: On-line training programs
http://www.managingharassment.com/
California Fair Employment & Housing Commission: Updates on Proposed Regulations
http://www.fehc.ca.gov/pub/harassment_training.asp
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