Question:

I read in the newspaper that Governor Schwarzenegger signed a bill that would require employers with fifty or more employees to provide sexual harassment training and education to all supervisory employees. Can you provide me with more detail as to what my obligations will be as an employer under this new law?

Answer:

California law requires that every employer act to ensure a workplace free of sexual harassment by taking certain minimum steps including posting sexual harassment information materials in the workplace and obtaining and making available an information sheet on sexual harassment. AB 1825, which was signed by the Governor on September 29, 2004, adds another minimum requirement to the steps employers must take to help ensure a workplace free of sexual harassment.

AB 1825 requires employers with fifty or more employees to provide two hours of sexual harassment awareness training and education to all supervisory employees. This training must be completed by January 1, 2006, unless the employer had previously provided sexual harassment training to these same employees at some point since January 1, 2003. After January 1, 2006, employers will be required to provide sexual harassment awareness training and education to each supervisory employee once every two years. This bill applies equally to employees of the State of California and requires that the State incorporate this training into the eighty hours of training it currently provides to all new supervisory employees.

The statute does not contain a definition of “supervisory employee.” However, the Assembly Bill Analysis refers to the distinctions between supervisors and non-supervisors that already exist in the context of sexual harassment law. The Fair Employment and Housing Act defines a supervisor as 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, 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.”

AB 1825 provides guidance about the type of information to include in the training. The bill states that the training shall include information and practical guidance regarding prevention and correction of sexual harassment, the remedies available to victims of sexual harassment in the workplace, and the federal and state laws that prohibit sexual harassment. The bill provides that 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.

AB 1825 states that an employer’s failure to provide the training required, in and of itself, will not result in liability for the employer if an employee or applicant brings an action alleging sexual harassment. It also provides that an employer’s compliance with AB 1825 will not insulate the employer from liability for sexual harassment.

AB 1825 contains the caveat that the required training and education is intended to establish a minimum threshold and should not discourage 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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