2008, Volume 11, Issue 1
Harassment Prevention Training 2008
Staying in step with California's mandatory harassment prevention training law.
In 2008, according to the California Fair Employment and Housing Commission, employers can expect more audits as the commission demands increased proof of compliance with AB 1825, California's harassment prevention training law.
Because of California's influence on national law, the implications of this new imperative for employers and businesses may rapidly expand and impact similar laws throughout the country, as well as impact global employers doing business in California. This article explores the type of training employers must provide on harassment, as required by statutory law, to assert an affirmative defense against workplace-based discrimination and harassment claims, and offers examples of court cases.
Photo: kneafsey
Background
Harassment is a serious issue for management in any business organization. It can negatively impact employee morale, damage careers, and harm the bottom line. It can also contribute to high absenteeism, reduced productivity, and increased employee turnover.
Managers must view all harassment complaints seriously since they can be held personally liable and sued individually for mishandling a complaint. Harassment is inappropriate anti-social behavior and it is the responsibility of the employer and every employee to make sure that harassment is never tolerated in the workplace.
AB 1825 (California Government Code Section 12950.1) mandated that employers doing business in California with 50 or more employees (including part-time employees, temporary employees, and independent contractors) provide harassment prevention training to all supervisors.
The original legislation, which was enacted in 2005 and became effective on January 1, 2006, required two hours of training for all supervisors every two years. The required training must be provided once again commencing January 1, 2008. Additionally, all new employees hired as supervisors, or who have become supervisors during this two-year period, must also be given two hours of harassment prevention training.
In an effort to provide clarity to employers on the law's requirements, as well as update practical guidelines for compliance, the California Fair Employment and Housing Commission (FEHC) implemented regulations on how to conduct harassment training, effective August 17, 2007.
In conjunction with that updated set of laws, California's Office of Administrative Law approved new regulations concerning the AB 1825 law. The major emphasis of the latest regulations is to clarify the harassment policies and training requirements.
Global Impact
It is frequently said that as California goes, so goes the rest of the country, especially in terms of progressive employment laws and regulations. Because of California's influence on national law, the implications of this new imperative for employers and businesses may rapidly expand and impact similar laws throughout the country, as well as impact global employers doing business in California.
AB 1825 has profound implications regarding the work environment and workplace relationships throughout the country and throughout the global business community.
If employers wish to be shielded from potential significant liabilities created by AB 1825 and other such laws, they must establish immediate and comprehensive training priorities.
Statistics
When engaged in mitigation planning relative to potential legal liability risks, employers often allocate their limited training resources on a prioritized basis. Often, the potential legal liability risks posed by harassment claims are perceived to be fewer than those of other potential claims, such as product liability. As a result, some employers allocate few if any resources to harassment training. Such a strategy is ill-advised.
However, harassment claims (even if only "alleged" claims) can be costly—one of the largest awards was for $34 million dollars. The employer, Mitsubishi Motor Manufacturing of America, Inc., settled claims relative to the actions of its employees, including some with no supervisory responsibilities.
In fiscal year 2006, the U.S. Equal Employment Opportunity Commission (EEOC) received over 13,000 charges of harassment. The EEOC resolved 12,936 of those harassment charges and recovered over $50 million dollars in monetary benefits for the claimants as well as other aggrieved individuals. (These settlement figures do not include significant monetary benefits awarded in litigated matters.)[1]
Photo: J.C. Fedels
New Regulations Provide Clarity
Under the new regulations implemented by the California Fair Employment and Housing Commission (FEHC) and California's Office of Administrative Law, employers should have a deeper understanding of how to comply with AB 1825. As such, the authors have listed the most significant provisions from these regulations below:
- Employers now have two options for ensuring their supervisors are trained every two years: (1) An employer may track its training for each supervisor by measuring two years from the date of the individual supervisor's training; or (2) an employer can designate a "training year" by which the employer trains some or all of its supervisors and then retrains them by the end of the next two years, as required by law.
- It remains critically important for the employer to have clear policies that address how to report and respond to any complaints.
- An employer must conduct an investigation of each complaint of harassment.
- The mandatory training must provide a definition of what constitutes unlawful harassment and a review of the different types of harassment as provided in the Fair Employment and Housing Act (FEHA) and Title VII of the Federal Civil Rights Act of 1964.
- Those being trained must be advised that employers cannot use any employee claims as a basis for firing, disciplining, or refusing to promote the employee, or other employees that might be included in an investigative process, who assert a claim.
- Those being trained must be provided with an understanding of the remedies that may be available to a victim of harassment.
- An employer must effectively communicate the consequences of harassment to those provided training.
- The harassment prevention training, as required by the original AB 1825 law, must be conducted by qualified professionals who have formal education, training, and experience in this field.
- The training must still be "interactive," as required by the original AB 1825 law, and no less than two hours in length. If an employer opts to provide e-learning programs, the two-hour requirement is still applicable.
- Strategies to prevent workplace harassment as well as the need for confidentiality in the harassment complaint process must be part of the employer-provided training.
- The training must afford those being trained an opportunity to pose questions and to be provided with answers to their questions.
Cases
The U.S. Supreme Court provides employers with an affirmative defense against certain workplace-based discrimination and harassment claims only[2] if employees and supervisors are trained with regard to what constitutes unlawful harassment and how to prevent it. Merely having an anti-harassment or sexual harassment policy is not enough.
The importance of employer-provided training was made clear in Mathis v. Phillips Chevrolet, Inc.[3] In this case, punitive damages were awarded to the plaintiff because the employer failed to provide any workplace harassment training. The court stated, "leaving managers with hiring authority in ignorance of the basic features of the discrimination laws is an 'extraordinary mistake' for a company to make, and a jury can find that such an extraordinary mistake amounts to reckless indifference."
A court in Romano v. U-Haul International[4] held that a written policy against workplace discrimination alone will not serve to prevent the award of punitive damages to the plaintiff. The employer, U-Haul International, was unable to provide evidence that they had "an active mechanism for renewing employees' awareness of the policies through…specific education programs."
However, if an employer adopts and communicates a well-defined policy prohibiting workplace harassment and provides its employees with meaningful harassment and discrimination prevention training, then it may successfully assert the affirmative defense that the U.S. Supreme Court established in 1998.
In Bryant v. Aiken Regional Medical Center, Inc.[5], an appellate court actually reversed a lower court's punitive damage award and held that despite a manager's unlawful conduct, the employer demonstrated "good faith efforts" to comply with workplace harassment and discrimination laws by issuing a clearly defined policy and providing employees with harassment and discrimination prevention training.
New AB 1825 Emphasis in 2008
While monitoring was more low-key in the beginning phases of AB 1825, the FEHC says that, effective 2008, it will be conducting more audits and demanding greater proof of compliance. This new phase is referred to as the "second training cycle."
Prior to August 2007, employers who made a good faith effort to follow the AB 1825 requirements were able to use their training practices and workplace policies to reduce major liabilities. Effective January 1, 2008, "good faith efforts" will no longer suffice. Failure to provide the required training will result in the agency issuing binding orders backed by court enforcement. Employers in California must not only be in compliance with the appropriate laws and regulations, but must make every effort to assure that their policies and training programs are, in fact, effective.[6]
From a purely pragmatic perspective, employers are beginning to realize that preventive "anti-harassment" training for all supervisors and managers demonstrates a concern for preventing harassment in the first place.
Under the new and stronger harassment prevention laws, just having the correctly worded "policy statement" and conducting the mandated two-hour training program may not be enough to protect the company and managers from significant lawsuits. For example, the new regulations require that all employees must understand how to report harassment situations. Also, it must now be communicated to all employees that reporting any instances of harassment is not only a right, but that there is a duty to report any such instances to management. It is, therefore, important that employers understand that harassment prevention policies constitute not only a “legal issue,” but have also become practical, day-to-day employee, behavioral, and corporate culture issues.
Conclusion
Under certain circumstances, an employer may be held legally responsible for harassment committed by an employee or a supervisor even if executives or supervisors did not know (and would not reasonably have known) about the incident. By adopting a clear anti-harassment policy and a sound process for investigating and dealing with complaints, an employer may be able to fend off or reduce a costly judgment. Failure to provide the required training will almost always be used as "evidence" of an employer's failure to take all reasonable steps to prevent harassment and may in some instances provide the basis for imposition of punitive damages.
[1] U.S. Equal Employment Opportunity Commission. Sexual Harassment, http://www.eeoc.gov/types/sexual_harassment.html.
[2] Burlington Indus., Inc. v. Ellerth, 188 S. Ct. 2257 (1998); Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998); See Equal Employment Opportunity Commission. Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, http://www.eeoc.gov/policy/docs/harassment.html.
[3] 269 F.3d 771 (7th Cir. 2001).
[4] 233 F.3d 655 (1st Cir. 2000).
[6] California Government Code Sec. 7288.0; California Government Code Sec. 12926(r).
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