Raising the bar: more than a 'best practice,' sexual harassment training is state law.

Attorneys have long advised that California employers train all employees on how to prevent sexual harassment in the workplace. In the past, such training has helped to avoid harassment claims or reduce liability.

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Additionally, California courts have suggested that all employers act to ensure a workplace free of harassment by training all employees about workplace sexual harassment.

Today, sexual harassment training is more than a suggestion--it's state law.

AB 1825

Gov. Schwarzenegger signed AB 1825 Sept. 29, 2004, requiring California employers with more than 50 employees to provide supervisors with two hours of sexual harassment training every two years. The bill's author argued that, even with current laws preventing workplace sexual harassment, it remains a significant problem.

For example, during the state's 2002-03 fiscal year, 4,231 sexual harassment cases were filed with the Department of Fair Employment and Housing, totaling 22 percent of all cases filed with the department. Further, sexual harassment claims cost the average Fortune 500 company $6.7 million a year in indirect costs alone, according to a study by Klein Associates.

AB 1825 applies to companies that regularly have 50 or more employees. It also applies to entities that regularly receive the services of 50 or more persons pursuant to a contract, such as temporary workers and independent contractors.

The law requires two hours of training for supervisors every two years. The initial requirement is that employers must provide the training by Jan. 1, 2006, to all employees who are employed as of July 1, 2005. Any employer who has provided this training and education to a supervisory employee after Jan. 1, 2003, is not required to provide training and education by the Jan. 1, 2006, deadline.

Supervisors hired or employees promoted to supervisory positions after July 1, 2005, must receive the training within six months after hiring or promotion.

SPECIFIC REQUIREMENTS

Training is required to be conducted through "classroom or other effective interactive training." In other words, having a supervisor sit and watch a video with no interaction will likely be insufficient.

The law specifies that only "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation" can provide the training. So, employers should take the time to ensure that they have a knowledgeable trainer with an extensive training and harassment-prevention background.

The training also must include:

* Information and guidance regarding federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment;

* Information about correction of sexual harassment and the remedies available to victims of sexual harassment in employment; and

* Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.

FAILURE TO TRAIN INCREASES RISK

The statute states that failure to provide training is not grounds for liability for harassment under the Fair Employment and Housing Act. However, failure to train will result in an DFEH order mandating the training.

More importantly, regardless of the statute, failure to provide the training increases the risk of liability in a sexual harassment lawsuit. While the statute says that providing the training alone is not a defense to harassment, California courts have held that anti-harassment training, complaint processes and preventative measures can minimize liability.

EMPLOYERS SHOULD CONSIDER MORE TRAINING

AB 1825 sets the floor for the amount of training that should be provided, not the ceiling. In fact, the statute explicitly says that it:

"[I]s 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."

Employers should consider providing training beyond sexual harassment that covers all areas of discrimination and harassment. This can help employers avoid litigation and responsibly discharge their obligations to a harassment and discrimination-free workplace.

TIPS FOR EMPLOYERS

The administration of sexual harassment training can be made easier if employers follow a few tips.

First, determine which employees were trained in 2003 or 2004. Supervisors trained during these years will not need training in 2005. The next step is to determine which employees need to be trained. This will help when it comes time to budget for the training.

It's also helpful to create and constantly update a tracking system to keep account of which supervisors have completed training--and when.

Second, employers should determine who will conduct the training and establish the training program using AB 1825 guidelines, including the program's interactive status, the inclusion of practical examples and assuring that the coverage is comprehensive.

Third, once you've established the program, communication is essential. Update your firm's anti-harassment and anti-discrimination policies, and inform management employees of the new training requirement.

DEFINITION OF SEXUAL HARASSMENT: FED. V. CAL

The Equal Employment Opportunity Commission, which enforces federal prohibitions against sexual harassment, defines sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature." Such requests, advances or sexual conduct constitute sexual harassment when it is an:

* Employment condition--submission to such conduct is made a term or condition of employment.

* Employment consequence--submission to or rejection of such conduct is used as a basis for employment decisions affecting individuals.

* Offensive job interference--such conduct has a purpose or effect of unreasonably interfering with an employee's work performance or creating an intimidating, hostile or offensive work environment.

The California Fair Employment and Housing Commission, which enforces state law on the subject, further defines sexual harassment to include verbal harassment, such as epithets, derogatory comments or slurs; physical harassment, such as assault or physical interference with movement or work; and visual harassment, such as derogatory cartoons, drawings or posters.

Over the years, the courts have classified sexual harassment into two main categories: "quid pro quo" sexual harassment and "hostile" or "offensive" work environment sexual harassment.

Quid pro quo harassment occurs when a supervisor or manager conditions an employment benefit or continuing employment on the employee's acquiescence in the form of sexual behavior.

But in a hostile work environment no employment benefits need be lost or gained. Further, all employees and independent contractors have a right of action against the employer. The employer is also arguably liable for anyone who enters its workplace and creates an illegal hostile work environment.

This type of harassment occurs where sexual jokes, suggestive remarks, cartoons, physical interference with movement (such as blocking or following) and sexually derogatory comments create an offensive working environment.

LESS OBVIOUS FORMS

There are other forms of sexual harassment that may not be obvious. The California Fair Employment and Housing Act defines unwelcome sexual advances of an employer toward an employee of the same sex as unlawful sexual harassment. And a 1998 U.S. Supreme Court decision held that same-sex harassment violates federal law (Oncale v. Sundowner Offshore Services, Inc., et al).

California law also prohibits harassment on the basis of pregnancy, marital status, sexual orientation (homosexuality, bisexuality and heterosexuality) and gender identity.

Sexually orientated posters and obscenities in the workplace also could create a "hostile" or "offensive" work environment sufficient to constitute sexual harassment.

Sexual harassment applies to both sexes, and may include sexually explicit statements or the creation of a hostile environment by women toward men.

FEHA also protects independent contractors, defined as any "person providing services pursuant to a contract," from sexual harassment. The hiring entity is liable for harassment of an independent contractor by an employee if it knew or should have known of the conduct and failed to take immediate and appropriate corrective action. The hiring entity must take all reasonable steps to prevent harassment from occurring.

STEPS TO PREVENT SEXUAL HARASSMENT

1. Implement and distribute a zero-tolerance sexual harassment policy, which should have a detailed chain of command for reporting harassment. The policy also must provide employees with the phone numbers for the California Department of Fair Employment and Housing.

2. Distribute the DFEH poster on sexual harassment (DFEH-162), which you can obtain at www.dfeh.ca.gov/Publications/postersEmp.asp.

3. Train all employees about sexual harassment, including how to set healthy boundaries.

4. Investigate all complaints of sexual harassment.

5. Take swift corrective action if a violation of the sexual harassment policy has occurred.

California employers need to be aware that AB 1825 raises the bar in terms of sexual harassment prevention, in some cases going beyond federal provisions.

Elizabeth R. Ison, Esq. is a principal at Sacramento-based The Ison Law Group specializing in employment law. You can reach her at [e-mail].

BY ELIZABETH R. ISON, ESQ.