In my home town in California, workplace sexual harassment allegations that came to light in November have shaken the sheriff’s department and rattled the community. The lurid “he said/she said” claims being publicly aired are familiar to many employers who have dealt with sexual harassment lawsuits.
This case is just one example of why it’s so important for all employers to educate their employees about policies designed to prevent sexual harassment, conduct impartial investigations and hold offenders accountable.
California is one of only three states, along with Maine and Connecticut, to mandate workplace sexual harassment training. A number of other states require training for government employees and strongly encourage it for private employers.
Under California law, supervisors in private companies with a least 50 employees must complete two hours of sexual harassment training every two years; new supervisors must be trained within six months of being promoted. Training may be delivered via classroom instruction or through an eLearning platform. A Dec. 31 deadline is looming for those who have not yet complied.
The training must include guidance on applicable federal and state statutes and practical examples. Covered employers must maintain training records for at least two years using a system for individual tracking, training-year tracking or a combination of the two. (Refer to the Society for Human Resource Management for a sample Sexual Harassment (AB 1825) Training Acknowledgement form.)
The law, AB 1825 (now codified in Cal. Gov. Code § 12950.1), is enforced by the state’s Department of Fair Employment and Housing, which has the authority to penalize employers for non-compliance. Under the state’s Fair Employment and Housing Act (FEHA), organizations accused of failure to adopt and/or communicate anti-harassment policies, adequately train supervisory personnel or properly investigate claims may be tried in court and face large settlements if found guilty.
It’s also worth noting:
- training compliance is not a defense to a sexual harassment claim, but it is an effective preventive measure
- a supervisor’s failure to receive training is not grounds for establishing liability for harassment, but supervisors can be held personally liable for unlawful harassment
In a related action, California Gov. Jerry Brown signed a law (Senate Bill 292) in August to clarify the definition of sexual harassment under the FEHA, Government Code Section 12940, to state: “Sexually harassing conduct need not be motivated by sexual desire.” The change was proposed in response to an appellate decision in the case of Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011), in which the court found that a male ironworker failed to establish a sexual harassment claim because he did not show that his alleged male harasser was a homosexual or motivated by sexual desire. The bill’s sponsor, Sen. Ellen Corbett said the court’s decision created confusion by requiring claimants to present proof of sexual desire in order to prevail in a claim.
Given these and other developments, employers in California and other states are strongly encouraged to review their workplace sexual harassment policies and related training materials. In general, employers are advised to regularly update employment and human resource policies, practices and codes of conduct to ensure they effectively address specific organizational needs and comply with applicable laws.