by Jackson Lewis

What do the U. S. Supreme Court, the Equal Employment Opportunity Commission, the States of California, Connecticut and Maine, and Jackson Lewis have in common? Each has said that employers must train their managers and supervisors about the unlawfulness of sexual harassment, the potential for liability it carries, and what to do to prevent and remedy its occurrence in all workplaces. In effect, each has acknowledged that workplace training is fundamental to maintaining what anti-discrimination laws require: that employers must provide a workplace where employees can perform their jobs without harassment or other unlawful interference and, should harassment occur, employers have the legal duty to prevent the misconduct and remedy its consequences.

California Training Law Has Broad Reach
AB 1825, the bill signed by Governor Arnold Schwarzenegger and which became effective on September 30, 2004, requires employers with 50 or more employees to provide two hours of sexual harassment prevention training to supervisory employees every two years. The training must include strategies for preventing sexual harassment in the workplace and must discuss remedies for victims of unlawful harassment.

Under the California law, a covered "employer" employs 50 or more persons, including temporary service employees and independent contractors. The law does not specify that the 50 employees must be working within. The law is applicable to employers with even just a few employees in California if the employer's workforce totals 50 or more employees.

Specific Training Requirements Include "Practical Examples"
To meet the new California requirements, sexual harassment prevention training must be in the form of "information and practical guidance" regarding federal and state laws concerning the prohibition of, and the prevention and correction of, sexual harassment.

The California law specifically requires "trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation" to conduct "two hours of classroom or other effective interactive training and education." Because of the term "interactive," an audio or video presentation alone without questions and answers, role playing, and other interactive methods may be insufficient.

All Supervisors Must Meet Training Requirements by January 2006
The training requirements will apply to most employees with some supervisory authority. The California Fair Employment and Housing Act specifically defines "supervisor" to include "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." Thus, even employees who merely recommend the above personnel actions may be deemed "supervisors" who must receive training.

After January 1, 2006, all supervisors must receive at least two hours of training every two years. Supervisors employed as of July 1, 2005 must complete the initial two hours of training by January 1, 2006. However, supervisors who have received training after January 1, 2003 need not be re-trained by the January 1, 2006 deadline (future bi-annual training will stillbe required). Supervisors who are hired, or employees promoted to supervisory positions, after July 1, 2005, must complete the training within six months of hire or promotion.

California Law Adds to Risk for Employers Who Fail to Train Supervisors
The California training law penalizes employers who fail to comply with the training requirement by triggering the issuance of an order from the Department of Fair Employment and Housing to conduct the required training. The law specifically states that compliance with AB 1825 is not a defense to a sexual harassment claim and, conversely, that a supervisor's failure to receive training is not grounds for establishing liability for harassment under the Fair Employment and Housing Act. The law explicitly states that its requirements are minimum standards and employers are free to implement more rigorous or frequent preventive measures.

Compliance Strategies Must Take into Account the Law of Training
The law of training, as the U. S. Supreme Court endorsed in the landmark 1998 decisions, Burlington Industries, Inc. v. Ellerth and Faragher v. City of Boca Raton, essentially mandates that employers must conduct supervisory training if they are to avoid or minimize liability, with the additional benefit that well-trained managers and supervisors stimulate a respectful and productive work environment. Under the Supreme Court's decisions, the ability of employers to assert the affirmative defense to liability depends, in part, on employee training as a critical part of a preventive strategy that includes an anti-harassment policy and complaint procedure that have been communicated to the workforce.

Other states either mandate sexual harassment training or recognize it as a defense to harassment claims. For example, Connecticut requires two hours of sexual harassment training for employers with 50 or more employees. Under the Connecticut statute, all new supervisory employees must receive training within six months of assuming new supervisory duties, but annual or bi-annual training is not required, unlike in California.

Maine's training requirements are more stringent than California's, requiring employers with 15 or more employees to provide a sexual harassment education and training program for all new employees within one year of commencement of employment.

The training must include, at a minimum, the following information:

1. The illegality of sexual harassment;
2. The definition of sexual harassment under state and federal laws and federal regulations;
3. A description of sexual harassment utilizing examples;
4. The internal complaint process available to the employee;
5. The legal recourse and complaint process available through the Maine Human Rights Commission, including how to contact the Commission and that the individual is protected against retaliation.

For supervisory and managerial employees, Maine employers must conduct additional training within one year of commencement of employment. The training must specify the supervisory responsibility to take steps to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.

In New Jersey, the state's supreme court issued a ruling in 2002 that, in certain circumstances, an employer could avoid liability for sexual harassment by a supervisor if the employer had certain preventive measures in place. In the case of Gaines v. Bellino, 173 N.J. 301 (2002), the state supreme court described those measures as:

1. Formal policies prohibiting harassment in the workplace; 
2. Complaint structures for employees' use, both formal and informal in nature;
3. Anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization;
4. The existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and
5. An unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.

As these mandates demonstrate, the message from some state legislatures, the courts and the EEOC has been consistent: be proactive and take preventive measures, including workforce training, to avoid or minimize harassment liability. The actions of the California legislature and governor have now upped the ante for employers by making mandatory supervisory training the base line upon which the sufficiency of proactive and preventive measures will be judged.

Anti-Harassment Training and The "Avoidable Consequences Doctrine"
The California Supreme Court in Department of Health Services v. Superior Court (McGinnis) refused to adopt the federal Faragher/Ellerth defense to harassment claims under the California Fair Employment and Housing Act. Instead, the court applied the tort doctrine of "avoidance consequences" to sexual harassment cases. The court held the avoidance consequences doctrine may limit damages for sexual harassment for the time period after which the employee could have used an employer-provided complaint process and reasonably avoided the consequences of unlawful harassment.

In an effort to reward employers who implement appropriate preventive measures, the court held that the "avoidable consequences" doctrine may apply where:

1. The employer has taken reasonable steps to prevent and correct workplace harassment;
2. The employee unreasonably failed to use the preventative and corrective measures that the employer provided; and
3. Reasonable use of the employer's procedures would have prevented at least some of the harm the employee suffered. Given AB 1825, sexual harassment training will be just one "reasonable step" employers must take to minimize liability.

AB 1825 also may provide a basis for punitive damages. Plaintiffs' lawyers may argue that failure properly to train in accordance with the new law demonstrates an organization's "reckless disregard" for the Fair Employment and Housing Act, thereby establishing a potential basis for punitive damages liability.

Employers can take a number of steps to educate and train employees on harassment prevention policies and practices.
For example, employees should be provided copies of the employer's equal employment opportunity and harassment prevention policies immediately after hiring, and on a regular basis thereafter. These policies should provide for various internal avenues of complaint. In addition, all employees should be trained on appropriate workplace behavior and the proper procedures for reporting violations of the employer's policies. Specifically, all supervisors and managers should be provided instruction on the appropriate way to respond to employee complaints, including detailed information regarding the employer's complaint investigation and resolution practices. Employers should demonstrate a commitment to abolishing sexual harassment by taking severe disciplinary action against those who engage in serious violations of company policy, or who commit repeat violations.

Employers with California-Based Workers Should Take Action Now
Employers of 50 or more employees, contractors, or temporary service workers and which have one or more employees or workers in California have until January 1, 2006 to implement the supervisory training requirements of AB 1825. Training only supervisors satisfies the minimum obligations under the new California law. However, employers should consider training all employees in California to minimize potential liability.

In anticipation of January 1, 2006, employers must develop a strategy for compliance. Things to consider well in advance of the deadline include:

• Purchasing training or developing in-house capabilities that will meet the California law standard for trainer qualifications; options include live or interactive, online or other electronic training technology;
• Determining and meeting the need for bilingual or multi-lingual instruction;
• Developing a means to monitor compliance and ensure new supervisors are trained within six months of hire/promotion and every two years thereafter;
• Installing and maintaining a system for recordkeeping to demonstrate compliance;
• Reviewing and updating policies and procedures to include reference to and documentation of adequate training;

Educating company executives about the new California law, as well as all employment law training requirements, to ensure the allocation of time and financial resources to meet the employer's obligations. Discussion should include the consequences of the failure adequately to train managers, supervisors, and rank and file employees and the risks of increased liability for unlawful harassment.

Workplace Law Institute Offers Training Solutions
With the enactment of the California sexual harassment prevention training law, the mandate for workforce training as the cornerstone of a dispute and litigation prevention strategy has been strengthened. The Jackson Lewis Workplace Law Institute assists employers in developing blended training strategies to meet legal compliance obligations and corporate objectives. Through dynamic and practical programs, the Workplace Law Institute helps to prepare organizations successfully to manage a wide range of employment issues, prevent costly lawsuits, promote productivity, and preserve human and financial resources to enhance profitability. Senior partners of Jackson Lewis LLP serve as the Workplace Law Institute coordinators, with decades of experience in designing strategies to avoid disputes, resolve problems, and satisfy legitimate expectations. Using a tailored approach to program design, the Workplace Law Institute offers a menu of solutions for corporate training challenges. For more information, please contact the Workplace Law Institute Coordinators:

For More Information Contact:
Lynn C. Outwater
Managing Partner
Pittsburgh Office
One PPG Place
28th Floor
Pittsburgh, PA 15222
Email: [email protected]
Phone: (412) 232-0232
Fax: (412) 232-3441

Michael J. Lotito
Partner
San Francisco Office
199 Fremont Street
10th Floor
San Francisco, CA 94105
Email: [email protected]
Phone: (415) 536-6326
Fax: (415) 394-9401