e-Bulletin: New Legislation Requires Bi-Annual Sexual Harassment Training for All Supervisors

Assembly Bill 1825, which adds section 12950.1 to the Government Code, requires that by January 1, 2006, any employer having 50 or more employees must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees 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 supervisor who has received this training and education after January 1, 2003, is not required to be trained again until after January 1, 2006. After January 1, 2006, each employer covered by Government Code section 12950.1 must provide sexual harassment training and education to each supervisory employee once every two years. The training and education required by this section must 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 must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

The Fair Employment and Housing Act (“FEHA”) defines a supervisor as “any individual having the authority, in the interest of the employer, 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 to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Interestingly, a claim that the training and education required by Government Code section 12950.1 did not reach a particular individual or individuals will not in and of itself result in employer liability to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer's compliance with this section may not insulate the employer from liability for sexual harassment of any current or former employee or applicant. However, it is likely to be an important factor in any litigation over supervisor conduct. In the event of a claim, an employer may be able to use as one of its affirmative defenses that such training did take place.

If an employer does not provide the required training and a complaint is filed with FEHA, the only specific penalty is for the Fair Employment and Housing Commission to issue an order requiring the employer to comply with these requirements.

PRACTICE POINTER When providing any required training, it is important to set up systems to document the training to make sure that new employees are trained and to ensure that employees are retrained every two years. Best Best & Krieger’s attorneys are ready to provide this required training to your supervisors and other managers. CLICK HERE  for training program information.