Press
Business Week: Harassment Training Is Now the Law in California
by ELT and Littler Mendelson,
Authors: Shanti Atkins, Esq. (President & CEO of ELT), David Goldman, Esq. (Legal Learning Group, Littler Mendelson P.C.) and Garry Mathiason, Esq. (Chair, Corporate Compliance Practice Group, Littler Mendelson P.C.)
Prudent employers have trained managers and employees on preventing unlawful discrimination and harassment in the workplace for years. Such training promotes mutual respect, increases employee job satisfaction and productivity, helps employers avoid conflicts that can lead to litigation, and can also reduce damages and aid in the defense of lawsuits that do arise.
Unfortunately, not all employers have followed this model. On September 29, 2004, California Governor Arnold Schwarzenegger signed into law AB 1825 — one of the nation's most comprehensive and initially misunderstood compliance statutes. By January 1, 2006, every employer with more than 50 employees in California must provide at least two hours of "sexual harassment" training and education to all supervisors of these employees. On its face, AB 1825 targets sexual harassment, discrimination and retaliation; however it also reminds employers of the importance of preventing all unlawful discrimination and harassment (including protected categories such as race, religion, age (40 and over), disability, and several others). Unfortunately and surprisingly, several early compliance efforts have made major mistakes and demonstrated fundamental misunderstandings of what was intended to be a simple codification of good employer practices. Set forth below are: (A) the essential requirements of the statute, (B) five legal landmines and how to avoid them, and (C) six recommended steps for implementing an AB 1825 compliant training program.
A. The Basics Of The Bill
• By January 1, 2006, employers must provide two hours of sexual harassment training and education to all supervisory employees employed as of July 1, 2005.
• The requirements apply only to organizations that regularly employ 50 or more employees or regularly "receive the services of" 50 or more persons. (This means independent contractors are likely included in the 50+ number.)
• Employers that already provided such training to a supervisory employee in or after 2003 or would be exempt from this initial requirement.
• After January 1, 2006, employers must provide harassment training and education to each supervisory employee once every two years, and to each new supervisory employee within six months of their hiring or assumption of a supervisory position.
• A "supervisor" is 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 to recommend that action. if the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment." It is better to be cautious/overbroad in the designation of supervisors. Just because someone does not have the "manager" in his/her title does not mean that she/he does not practically meet the legal definition of a supervisor. Managing an assistant, for example, may be enough to be a supervisor.
• The training must be of a high quality and conducted via "classroom or other effective interactive training" (which includes online training) and cover the following topics:,
– Information and practical guidance regarding federal and state statutory laws about sexual harassment.
– Information about the correction of sexual harassment and the remedies available to victims of sexual harassment.
– Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.
Failure to comply with AB 1825 does not render an employer automatically liable, or carry a specific penalty. Plaintiffs will argue, however, that not meeting the new training mandate is evidence of an employer's failure to take all reasonable steps to prevent harassment and therefore supports a punitive damages award. When the statute was passed, the California Legislature viewed this potential use of the statute by Plaintiffs in harassment or discrimination litigation as a strong motivation for employer compliance.
Likewise, complying with AB 1825 is not an automatic shield from liability for sexual harassment.
B. Complying with AB 1825: Five Legal Landmines And How To Avoid Them.
There is a common misconception that compliance simply means "follow the law." It's much more than that. Indeed, companies that structure their compliance programs on meeting statutory requirements may inadvertently place themselves at greater risk. The following five "landmines" illustrate how an effective compliance program entails much more than a narrow focus on the mandates of AB 1825 (or similar such laws). Yet, laws such as AB 1825 provide a mandate and allocation of corporate resources that can be used wisely to create an effective compliance program. The challenge is to avoid the classic mistakes, and affirmatively use AB 1825 as additional motivation to build a workplace of mutual respect that keeps and attracts productive employees.
Landmine #1: Sex Only. Viewing AB 1825 As Only Requiring Training On Sexual Harassment, And Limiting Programs To This Single Topic.
AB 1825 is not just about sexual harassment! While the focus is on sex, the language of the bill affirmatively requires training on "discrimination and retaliation." Moreover, it specifically leaves in place all existing requirements to train on other unlawful forms of harassment and discrimination (such as age, race, and religion). There is a serious danger that AB 1825's focus on "sexual harassment," if taken literally, may actually set employer training back ten years - to the early 1990's. During those years, employer-training efforts focused on sexual harassment prevention as an outgrowth of the case law following the confirmation hearings involving Supreme Court Justice Clarence Thomas. Many managers wrongly perceived that the term "sexual harassment" had the same meaning as "unlawful harassment." The obsession with "sex" left uncovered the serious problems associated with other forms of unlawful harassment. Racial harassment, harassment based on age, national origin or disability, and harassment associated with one's religious beliefs were not only illegal, but very significant workplace challenges.
In 1999 the EEOC issued guidance reprimanding the employer community for its failure to broaden training to cover the full range of prohibited harassment:
[V]icarious liability applies to harassment by supervisors based on race, color, sex (whether or not of a sexual nature), religion, national origin, protected activity, age, or disability. Thus, employers should establish anti-harassment policies and complaint procedures covering all forms of unlawful harassment.
* * *
An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result. Such training should explain the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation. EEOC's Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June18, 1999).
Gradually, employers responded with increasingly effective training, educating employees and managers about how harassment could be associated with several prohibited categories, not just sex. California's "sexual harassment" law, however, has set back some employers' overall legal compliance efforts as they focus narrowly on the mandates of the statute to the exclusion of other forms of unlawful harassment, discrimination and retaliation. It is a serious mistake to interpret the California law so narrowly that an employer does not pay attention to broader forms of harassment and discrimination prevention.
Comprehensive unlawful harassment training is so important that an employer may actually face a greater risk of liability and damages, including punitive damages, having conducted only sexual harassment training as opposed to no training at all. Envision the conclusions that could be reached by a juror in a race, age, religion, national origin, disability, or sexual orientation harassment case, where the employer had conducted extensive sex harassment training but totally ignored these other protected categories. Plaintiff's counsel in such a case will remind the jury (again and again) that the employer must not have found these concerns "important" as it intentionally chose not to train in these areas. Moreover, even the sexual harassment training will be discounted, branding the employer as an uncaring "minimalist" that carries out only what is absolutely mandated by statute. This impression could be devastating. This is not a hypothetical argument, but rather one that we have encountered and anticipate in current litigation.
Clearly, adding thirty minutes to the two-hour training requirement, and integrating the full range of protected categories is the highly preferred way of complying with AB 1825, of reducing overall risk, and, perhaps most importantly, of making a statement to employees that the organization does not tolerate prohibited harassment and discrimination in any form!
Applying this lesson more broadly, specific training requirements should be evaluated to determine the areas of greatest organizational risk. Broadening the program may produce a significant ROI benefiting the organization. For example, for several years, the State of Washington has provided its managers with mandatory training in as many as fifteen areas of employment and labor law. They report that this undertaking alone is responsible for a 37% decline in settlement costs and attorney fees, apart from the value of having a better workplace. See Training Really Is The Law: The Rise of Mandatory Training, THE NATIONAL EMPLOYER, Section 15.1.3, at 954 (2005).
Landmine #2: California Only. Providing Specialized Training Only To Supervisors In California Because AB 1825 Does Not Apply In Other States.
California occasionally experiments with employment practices that are outside the national mainstream. Other times, California's practices are indicative of national trends. While AB 1825 is unfortunately focused on only one form of unlawful harassment, it is putting into statute an employer practice that should have been well established. For responsible employers, such education for its managers has long been required. Nonetheless, AB 1825 (not unlike the seatbelt laws) makes a definitive statement specifying a deadline and a minimum requirement for compliance. To apply this statute solely to employees in California would be a major mistake for many multi-state employers.
First, the California statute makes explicit what has been an EEOC requirement for several years under federal law. Indeed, as presented above, training needs to cover all prohibited forms of harassment and discrimination. Clearly this is a national concern, if not a core value that organizations may elect to apply internationally.
Second, the organization must consider the message sent to employees, judges and juries in other states if training is limited to California. Imagine the following situation:
An employer with multiple locations across the country implements a robust training program for its California supervisors. A serious harassment incident arises in the organization's Dallas office. The allegations reference harassing behavior that was directly addressed in the California training program, but Dallas supervisors did not receive the same training. Imagine now that you are the plaintiff's attorney in this case, criticizing the employer's lack of reasonable efforts to prevent and correct workplace harassment. In this instance, a narrowly focused, localized training approach actually creates problems for the employer. Accordingly, one national training policy is highly recommended.
Finally, California now joins Connecticut and Maine with a mandatory training statute reaching the private sector. (Many states have mandatory training requirements for various categories of public employees.) It is difficult to believe that other states are far behind in making training "mandatory," especially when some of those states already have statutes that "encourage" such training. In 2000, the authors of this article publicly predicted that by 2010, mandatory harassment and discrimination training would be statutorily required. The California law is not an aberration; it is part of a long developing trend. It is highly likely that other states will follow, and that the California statute will be amended to explicitly cover all forms of prohibited harassment and discrimination.
On a positive note, we believe there is solid evidence that an effective program covering the full range of protected categories can be presented within the two hours now required for sexual harassment training. This task is made easier by the fact that there are similarities in many of the standards regarding unlawful harassment and discrimination (regardless of the type of harassment or discrimination), including investigations, remedies, and internal prevention strategies. Further, while AB 1825 training should be focused on sex, it was not the intent of the Legislature to penalize employers who provide a two hour course and properly place sexual harassment prevention in the context of other forms of prohibited harassment. In addition to the all the legal requirements detailed above concerning an employer's obligation to prevent all forms of harassment, in the real world, different forms of harassment and discrimination often occur simultaneously. Nonetheless, we are recommending two and one-half hours of training to ensure a truly robust and preventative program, as well as to extinguish any concern (not matter how unfounded) regarding the adequacy and length of the training.
Landmine #3: Supervisory Employees Only. We're Not Training Employees Because AB 1825 Only Covers Supervisors.
Non-supervisory employees in California and beyond benefit and need training for at least four critical reasons:
1. A review of federal case law post the landmark 1998 U.S. Supreme Court's Faragher (118 S. Ct. 2275) and Ellerth (118 S. Ct. 2257) decisions suggests that both managers and employees should be trained to better ensure the availability of an affirmative defense to harassment claims brought in federal court.
2. California Government Code section 12940(k) requires employers to take "all reasonable steps necessary to prevent discrimination and harassment from occurring." Basic harassment prevention training for all employees is part of a reasonable step, necessary to prevent workplace harassment and discrimination.
3. In the 2003 State Department of Health Servs. v. Superior Court decision (31 Cal 4th 1026), the California Supreme Court held that the Fair Employment and Housing Act (FEHA) does not allow the federal Faragher/Ellerth defense in harassment claims. Instead, for cases brought in state court, California employers may assert a different defense under the FEHA: the doctrine of avoidable consequences. This defense allows an employer to limit damages by proving that it took appropriate steps to prevent and address harassment.
According to State Dep't of Health Servs., to establish the avoidable consequences defense, a California employer must:
• Show that it adopted appropriate anti-harassment policies and communicated essential information to employees.
• Ensure a strict prohibition against retaliation for reporting alleged policy violations.
• Ensure that reporting procedures protect employee confidentiality as much as is practical.
• "Consistently and firmly" enforce anti-harassment policies.
None of these factors identified by the Court are limited in scope to supervisors. The Court further stated that in establishing the avoidable consequences defense, potentially relevant evidence includes "anything tending to show that the employer took effective steps" to encourage individuals to report harassment and for the employer to respond effectively. Clearly, this broader directive, in addition to the specific requirements listed above, strongly supports training for both employees and supervisors
4. Recent amendments to the Federal Sentencing Guidelines require ethics and compliance training for all managers and employees. Harassment and discrimination prevention training is a core component of any effective ethics and compliance training program. (Learn more at /ethics_code_of_conduct/ethics_code_of_conduct_faq.html.)
Landmine #4: Poor Quality. Any Training Will Qualify As Long As It's Classroom Instruction.
This is a double landmine. AB 1825 mandates that the training be of high quality and presented by "trainers or educators with knowledge and expertise" in preventing harassment, discrimination, and retaliation. If classroom instruction is used, the qualifications of the trainers must be established. Train-the-trainer programs may be appropriate, but the actual instructors still need to meet the knowledge and expertise requirements. Accordingly, HR professionals and employment attorneys are highly recommended as trainers. If your organization is in doubt, it should consult qualified legal counsel to review the planned program. Articles on AB 1825 may be informative, but they are not a substitute for proper legal advice.
The second part of this landmine is the false assumption that the training must be in a classroom and live. The statute was explicitly written to include "other effective interactive" instruction that meets the required quality standard. Shockingly, many organizations initially failed to understand that interactive online instruction qualified. Assembly Member Sarah Reyes, who authored AB 1825, recently commented publicly that quality interactive online training clearly qualifies and expressed surprise that she is so often questioned about the adequacy of e-learning. (The Littler Mendelson National Employer Program, March 31, 2005, presented in Phoenix, Arizona.) Such online instruction is also a highly effective way of tracking who is enrolled in training and documenting completion. It is now recognized that some of the most effective training in the world is provided online, demanding the involvement of the learner every few seconds. Meanwhile, video or web-based programs that are not interactive, can quickly fall into the "show and go" category. This is neither what the Legislature intended to require, nor does it have the positive impact of a well-designed live or online learning program. Gone are the days of meeting the training requirement by putting an "x" in the box.
Landmine #5: Delay. We Don't Need To Do Anything Right Now.
The January 1, 2006, deadline for AB 1825 compliance is fast approaching. To ensure a successful program, preparations and training should begin at least five months in advance. Employers must also factor in the typical "slow down" of activity around holiday time.
Preparing a compliance training program typically requires consultation and buy-in from multiple departments – Legal, HR, Employee Relations, Risk Management, IT, etc. If an outside vendor is used for the training, ensuring adequate time to finalize contracts and prepare for implementation requires that employers act now!
If all good intentions regarding live instruction or internally developed programs fail and the end of the year approaches, high quality interactive online training may be your last and only option for compliance. AB 1825 compliant anti-harassment and discrimination programs, such as those offered by ELT (Employment Law Learning Technologies)(www.elt-inc.com), can be quickly implemented. However, even this capacity could be overwhelmed if too many employers delay. Moreover, earlier activation allows for greater customization and more effective implementation.
C. Steps For Employers Implementing Effective Harassment And Discrimination Prevention Training.
There are several steps employers will need to take to ensure compliance with the new California law. Consider the following approach:
1. The Assessment: Audit the organization's 2004 harassment training efforts. Remember that supervisors trained in 2003 and 2004 with programs that meet AB 1825's requirements will not have to be re-trained in 2005. Some employers will only have to focus on training newly hired or promoted supervisors.
2. Selecting The Training, The Instructors, And The Program Creators:Decide who will do the training. Regardless of whether the training is conducted with internal or external resources, live or online (or a combination thereof), employers must remember the quality standards mandated by the statute.
3. The Training Content And Timing: Establish the training program - topics and timing. The law requires a minimum two hours of training that is focused on sex, and that covers "harassment, discrimination and retaliation." By lengthening the training program slightly (a half-hour, for example), employers should be able to cover harassment prevention based on the other categories protected under federal and state law (such as race, age, and disability). Covering these extra topics will help limit workplace disputes and create a stronger defense against liability or damages if litigation arises. While it is likely that two hours of harassment and discrimination prevention training will fully meet AB 1825's requirements, should the time requirements be challenged, the small investment in an additional few minutes resolves the issue and is highly recommended insurance.
4. Decide Who Needs To Be Trained: The statute requires training all supervisors. Thus, employers need to list all of those people who meet the FEHA's definition of a supervisory employee. The harder task may be keeping track of those who are newly promoted to supervisor, or whose responsibilities change to include supervisory duties.
5. Draw Up A Training Schedule: Even mid-size companies will likely be challenged to ensure that all supervisors receive training by January 1, 2006 and every two years thereafter. The six-month requirement for newly hired or promoted supervisors is an additional, ongoing deadline that must be carefully managed.
6. Document The Training: Employers must also retain records showing that supervisors actually received training. Keep track of which supervisors have taken and completed the training by creating and maintaining records, such as sign-in sheets. Learning management systems or data tracking systems that come with some high quality online products can greatly assist with this process. An employer that diligently trains all its supervisors with appropriate content in a timely manner, but cannot produce the evidence confirming it has done so, faces the possibility that it will be disbelieved by a jury, court, or administrative fact-finder, and thus reap none of the benefits of its diligence.