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California Lawyer: A Discriminating Perspective

The "Rules for Sexual Harassment Training" article [MCLE, March] provides a useful first examination of California's new training statute. Especially well-presented is the case law regarding how effective training may limit or even eliminate damages from sexual harassment claims. However, there is serious danger that a too-narrow focus on the minimum requirement of the statute will actually set back the legal-compliance efforts of California employers.

Mistake No. 1: AB 1825 requires only sexual harassment training. AB 1825 is not just about sexual harassment. It requires training on discrimination and retaliation as well. Moreover, it specifically leaves in place all existing requirements to train the workforce regarding other unlawful forms of harassment and discrimination (such as age, race, and religion). Comprehensive unlawful-harassment training is so important that I believe an employer faces a greater risk of liability and damages, including punitive damages, by conducting only sexual harassment training than if it had conducted no training at all. In a race, age, religion, national origin, disability, or sexual orientation harassment case, plaintiff's counsel could remind the arbitrator, jury, or court that the employer apparently does not find these concerns important.

Mistake No. 2: Only live instruction complies with AB 1825. This is categorically wrong, as the statute explicitly provides for "other interactive" instruction. As long as the training is high-quality and interactive, Web-based instruction is an excellent AB 1825 solution, which was specifically contemplated by the California Legislature. The article's exclusive focus on live instruction could be misread.

Several other mistakes are being made as AB 1825 is implemented. These include limiting the training to supervisors, delaying training, ignoring the statute because it appears not to have penalties, and assuming that a company with fewer than 50 employees can avoid the legal requirements for training. Most employers have recognized the need to build a workplace free of unlawful harassment. Training is a necessary component of such an effort, and as such, AB 1825 should be welcomed.

Garry Mathiason, Littler Mendelson, San Francisco
Republished from California Lawyer