All supervisory employees in California must receive two hours of training and education in sexual harassment every two years, if their company has fifty or more employees. The training must consist of classroom or other effective interactive training and education regarding harassment. The training and education must include information and practical guidance regarding the federal and state statuary provisions concerning the prohibition against harassment, the prevention and correction of harassment, and the remedies available to victims of sexual harassment in employment. The training and education must also include practical examples, aimed at instructing supervisors in the prevention of sexual harassment, discrimination, and retaliation, and must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination and retaliation.
The foregoing training and education requirements are part of the California Fair Employment and Housing Act, as set forth in Government Code Section 12950.1, also known as Assembly Bill 1825. Under the statute, “employer” means any person regularly employing fifty or more persons or regularly receiving the services of fifty or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. It does not appear that the company must have fifty or more employees in California in order to trigger the requirement for supervisory employees in California to receive the harassment training and education.
The statute refers to subsections (j) and (k) of Government Code Section 12940. Subsection (j) of Government Code Section 12940 is the prohibition against harassment based on race, creed, nationality, disability, age, sex or sexual orientation, and other related categories. Subsection (j)(4)(C) provides that “harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth or related medical conditions.
Subsection (k) of Government Code Section 12940 provides that it is unlawful for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
The harassment training and education statute at subdivision (d) shows that notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall not in and of itself result in the liability of any employer to any present or former employee or applicant in any action alleging sexual harassment. Conversely, an employer’s compliance with this section does not insulate the employer from liability for harassment of any current or former employee or applicant. Subdivision (d) means that a plaintiff cannot use violation of a statue mandating sexual harassment training and education as a basis for claiming negligence per se, that is negligence as a matter of law because of a violation of the statute. Nonetheless, a victim of sexual harassment may introduce evidence that an employer failed to provide harassment training to a supervisor in support of a claim a harassment, and a jury may consider the failure to provide sexual harassment training as a factor in support of finding liability against an employer, as long as there is other evidence in support of liability of the employer, even if that other evidence is in and of itself inconclusive about liability.
Some companies prefer to have sexual harassment seminars presented by an attorney or a human resources expert on harassment to a class of employees in person, but others prefer to present the harassment training by computer through educational software programs that have interactive components. The statute requires an interactive component to the education and training and for computerized presentations and that usually involves the participant answering questions at different stages throughout the software presentation.
Many companies with less than fifty employees also provide harassment training to their supervisors. Insurance companies sometimes offer premium discounts to employers who have a sexual harassment training program.
Similarly, many companies also provide sexual harassment training to non-supervisory personnel. Notably, Government Code Section 12950.1 provides that the training and education it requires is intended to establish a minimum threshold and should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet the legal obligation of employees to take all reasonable steps necessary to prevent and correct harassment and discrimination.