Summer 2005

SEX, LIES, AND VIDEOTAPE:
HAVE YOUR SUPERVISORS BEEN TRAINED?

New Rules for Mandatory Sexual Harassment Training in 2005

Who is covered?

Under a law that took effect on New Year’s Day 2005, employers of 50 or more employees must train supervisors regarding sexual harassment for a minimum of two hours every two years.  Temporary service employees and independent contractors are included for the purpose of calculating the number of employees. 

 What is required?

 Under the new rules, codified at California Government Code section 12950.1:

• Supervisors employed as of July 1, 2005, must receive two hours of training on or before January 1, 2006.

• Employees hired or promoted into a supervisory position after July 1, 2005, must be trained within six months of hire or promotion.

• Supervisors trained between January 1, 2003, and December 31, 2004, do not need to be retrained by January 1, 2006.

• Training must be provided to all employees who have “supervisory authority,” which generally includes the authority to exercise independent judgment to:

▸     hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees;

▸     direct the work of employees or adjust their grievances; or

▸     effectively recommend any of these decisions.

            Contents of Training:

• Information and practical guidance regarding sexual harassment laws, including harassment prevention and correction and available remedies.

• Interactive training required.

            Legal Effects of Training:

• Training does not provide a “safe harbor” against liability under state law; however, it is anticipated that failure to provide training may be considered by some courts as grounds for punitive damages in sexual harassment lawsuits.

• If an employer fails to comply with the new law, the remedy shall be for the state Fair Employment and Housing Commission to “issue an order requiring the employer to comply.”  (Cal. Gov. Code § 12950(e).)

• Federal courts recognize that training employees to prevent sexual harassment and to be familiar with the employer’s complaint process can help establish an affirmative defense where a supervisor’s sexual harassment of an employee does not result in a tangible employment action, such as firing or demotion, and where the employee fails to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm otherwise.  (Faragher v. City of Boca Raton (1998) 524 U.S. 775, 807-8; Burlington Industries v. Ellerth (1998) 524 U.S. 742, 765.)

            Hobson’s Choice

• Employers are strictly liable for unlawful harassment committed by supervisors.

• Executives, high-ranking managers, and owners with authority to exercise discretion over personnel matters will certainly qualify as statutory “supervisors.”  Beyond that, it is not always clear whether frontline supervisors and middle management employees have sufficient discretionary authority to qualify as “supervisors” under California’s Fair Employment and Housing Act (“FEHA”) or whether they simply have limited authority to direct other employees but lack the requisite discretion to meet the statutory definition of a “supervisor.”  (See Babbitt Eng’g & Mach. v. Agricultural Lb. Rel. Bd. (1984) 152 Cal.App.3d 310, 327-328.)  Training employees with “quasisupervisor” duties may increase the risks that the quasisupervisors will be deemed “supervisors” for liability purposes.  On the other hand, hindsight is 20/20, and a failure to provide the training may increase an employer’s risk of liability if such employees are subsequently found to be statutory “supervisors” under the theory that the offensive behavior could have been avoided had the newly-required training been provided.  One option for avoiding this dilemma is to train all employees, thereby eliminating any suggestion that receiving the training connotes supervisory status and ensuring that employer policies are well publicized.

What should employers do?

• Provide effective interactive training about employer duties to prevent and correct sexual harassment and the supervisors’ role in helping the company to comply with the law.

• Provide realistic examples of what is and what is not sexual harassment so supervisors will know it when they see it.

• Provide training about company sexual harassment policy and what a supervisor should do to take immediate and appropriate action upon receiving a sexual harassment complaint or otherwise recognizing possible sexual harassment, including conduct that may create a “hostile work environment.”

• Provide opportunities for role playing and practice so supervisors can practice the diverse skills needed for effective intervention in responding to a complaint and spotting questionable behavior.

• Include various forms of media to accommodate different learning styles: visual; audio; and kinesthetic.

• Provide a sign-in sheet for all attendees and maintain the lists with your personnel records.

When in doubt, call a good lawyer.

                                                                 GRETA T. HUTTON

Ms. Hutton is a Principal in the firm’s employment and commercial litigation groups.  For more information, you can reach Ms. Hutton at (818) 547-5108 or email: gh@kpclegal.com.

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