On September 29, 2004, Governor Arnold Schwarzenegger signed Assembly Bill 1825 (new Government Code section 12950.1; see www.leginfo.ca.gov), which requires employers to train supervisors about sexual harassment prevention every two years.

Assemblywoman Sarah Reyes, the bill’s sponsor, believes that current laws, while prohibiting sexual harassment, have not done enough to eliminate the problem. Reyes argued that harassment costs the average Fortune 500 company $6.7 million dollars per year in indirect costs alone.

Training regarding sexual harassment can help to reduce those costs and most employers have embraced such training on preventing unlawful discrimination and harassment in the workplace as a sound management practice.

WHAT IS REQUIRED?

By January 1, 2006 covered employers must provide two hours of sexual harassment training and education to all supervisory employees who are employed as of July 1, 2005. Employers that already provided such training to a supervisory employee in or after 2003 would be exempt from this initial requirement as to any such supervisory employee.

AB 1825 requires employers with 50 or more employees to train its supervisors once every two years on sexual harassment issues. That training must be provided by qualified individuals with practical experience in preventing and responding to sexual harassment claims.

TYPE OF TRAINING

AB 1825 also delineates specific standards for the required training. The training must be conducted via “classroom or other effective interactive training” and include the following topics:

• Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention of sexual harassment.
• Information about the correction of sexual harassment and the remedies available to victims of sexual harassment in employment.
• Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.
• The quality mandate extends to those presenting the training. The training must be presented by “trainers or educators with knowledge and expertise” in preventing harassment, discrimination, and retaliation.

While no guidance or regulations have yet been promulgated by the Fair Employment and Housing Commission (FEHC), most employment attorneys note the strong bias in favor of classroom training. We also believe that the “50 employee” requirement is based on the number of employees in California.

That being said, most employers recognize that the public policy in CA against sexual harassment and FEHA’s independent requirement that employers take all reasonable efforts to provide an environment free of harassment, strongly encourages training in non-discrimination and harassment issues for all employees. Employers should also ensure that the products they select addresses the issues in an appropriately serious manner.

Indeed, it will be difficult in any subsequent litigation to assert the new “McGinnis” defense to damages under the FEHA (or Faragher/Ellerth under Title VII) if employees are not educated about how to complain about or respond to discrimination and harassment.