January 2005: California’s Legislature Adopts New Mandatory Sexual Harassment Prevention Training Law

While sophisticated employers have long conducted sexual harassment prevention training, California has now made such training a legal requirement for many California employers. California Government Code Section 12950.1, which became effective as of January 1, 2005, requires employers who regularly employ or receive the services of 50 or more individuals conduct regular sexual harassment prevention training and education to supervisory personnel.

What Sort of Training Must be Conducted?

The new statute sets forth explicit and specific standards for sexual harassment prevention training. The training must be conducted in a classroom setting or through other “interactive” means. Whether video or web-based presentations satisfy this “interactive” requirement has not yet been addressed by the state, and therefore, employers are well-advised to provide training using live instructors. Training must cover 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 the workplace; and
• Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

The new statute requires that such training be conducted by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.”

When Must Training Be Completed?

Employers must provide at least 2 hours of sexual harassment prevention training to all current supervisory personnel by January 1, 2006. However, employers may count equivalent training provided to such personnel between January 1, 2003 and January 1, 2005 toward meeting the 2-hour minimum. Employers should make sure that any such prior training, as well as training going forward, is substantiated by adequate records of training content and attendees.

New supervisory personnel either hired or promoted to supervisory positions after January 1, 2005 must receive 2 hours of sexual harassment prevention training within 6 months of hire or promotion date.

After January 1, 2006, employers covered by Government Code Section 12950.1, must provide supervisory personnel with an additional 2 hours of sexual harassment prevention training every 2 years.

The attorneys at EMC² have developed training modules to comply with these new sexual harassment training requirements. Please contact us for further information on training.

December 2003: California’s Supreme Court Announces New Sexual Harassment Defense

Employers should be aware that on November 24, 2003, the California Supreme Court issued a ruling that has important implications for employer harassment policies and training practice. In the case of State Department of Health Services v. Superior Court (McGinnis), the California Supreme Court articulated a new defense to sexual harassment claims under state law, which potentially allows employers to significantly reduce damages when a plaintiff claims that she/he has been the victim of sexual harassment. The new defense, known as the “avoidable consequences doctrine,” requires an employer to show all three of the following things:

1. The employer took reasonable steps to prevent and correct workplace harassment;
2. The employee unreasonably failed to use the preventative and corrective measures that the employer provided;
3. The reasonable use of the employer’s procedures would have prevented at least some of the harm suffered by the employee.

This case highlights the importance of effective preventive and corrective measures for employers. In fact, the California Supreme Court specifically noted, “to take advantage of the avoidable consequences defense, the employer ordinarily should be prepared to show that it has adopted appropriate antiharassment policies and has communicated essential information about the policies and implementing procedures to its employees.” Thus, as a result of this case, harassment policies and proper employee training about harassment and discrimination issues are more vital than ever.

Employment Matters Counseling & Consulting LLP has extensive experience in creating harassment and related policies and in providing training to all levels of employees. We would be happy to work with you to assess the status of your harassment policies and practices and to provide appropriate policies and employee training.