In the case of harassment, the best defense is a good offense.

Companies that have a strong anti-harassment policy with specific methods for prevention and investigation, quality training, and documented, consistent application of the policy and training are most likely to avoid litigation.

California is one of the two most ethnically and racially diverse states in the United States . Taking steps to maintain and enforce sensitivity and diversity positively affects the company's bottom line and fosters trust and communication between employees.

New California Law Mandates Harassment Prevention Training for Supervisors

Governor Schwarzenegger signed AB 1825 into law, requiring certain California employers to provide two hours of sexual harassment training and education to their supervisory employees every two years.

Which Companies Must Comply?

The law defines a covered “employer” as one that employs 50 or more employees or regularly receives the services of 50 or more persons pursuant to a contract. In other words, if you retain the services of “contractors,” these individuals will be included under the law as contributing to the 50 employees. Further, the law does not specify that the 50 employees must be located in California . Therefore, an employer with only three employees in California and 47 outside the State must comply with AB1825's training requirement.

Who Must be Trained?

All supervisory personnel hired before July 1, 2005 , unless they received qualified training during or after 2003, must be trained before January 1, 2006 . The law defines supervisors as anyone having the authority to exercise independent judgment to:

That is, if an employee makes recommendations to a manager or decision maker, this employee likely counts as a supervisor for the purposes of this requirement. Therefore, legal interpretation has suggested that employers should err on the side of caution, as almost everyone can be considered a supervisory employee pursuant to AB1825.

When and How Often Must Training Take Place?

The law requires ongoing training after January 1, 2006 for all supervisors, such that they receive at least two hours of anti-harassment training every two years. For those supervisors employed as of July 1, 2005 , the initial two hours of training must be completed by January 1, 2006 . (Supervisors who have received qualified training since January 1, 2003 need not be re-trained by January 1, 2006 ; however, future bi-annual training will still be required.) With regard to supervisors hired or promoted into supervisory positions after July 1, 2005 , the training must be completed within six months of hire or promotion to a supervisory position.

What Must the Training Include?

The law provides general guidance concerning the scope of the training to be provided.

The training must include:

The statute specifically requires employers to use “practical examples” aimed at preventing harassment. Importantly, the training must be in a classroom or an equally effective interactive environment. Thus, a video presentation alone without questions and answers, role-playing, and other interactive methods may be insufficient.

Who Can Provide the Training?

The training must be presented by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” The trainer must be qualified to answer questions presented by the trainees. The trainer must completely understand the complex body of harassment and discrimination laws and keep up to date with new cases that change the interpretation of these laws.

For example, in Cadena v. Pacesetter Corp., 224 F.3d 1203 (10 th Cir. 2000) the employer appealed a jury's award of $300,000 in punitive damages in a sexual harassment case by arguing it had provided harassment prevention training. However, the 10 th U.S. Circuit Court of Appeals upheld the award in part because the employer could not show that its harassment prevention trainer was qualified to provide the training. When questioned during her deposition, the trainer incorrectly answered questions about what types of conduct could be considered sexual harassment. The court ruled that given the “trainer's ignorance about sexual harassment, a jury could reasonably infer that Pacesetter failed to make good faith efforts to adequately educate employees about its non-discrimination policy and Title VII.”

As reported in an article in the National Law Journal, in harassment lawsuits: “Plaintiff's attorneys and the EEOC have begun to question employers aggressively as to how much money they spend on training, the expertise of the trainers, the curriculum and employee response to the training. Thus, as training programs have become increasingly important, the quality of these programs has developed into the newest battlefield in the employment litigation wars.” (Ellen McLaughlin and Carol Merchasin, “Training becomes important step to avoid liability,” National Law Journal, January 29, 2001 .)

Our trainers are qualified, experienced, and subject matter experts. They utilize proven training techniques to relay the information in a meaningful manner, while complying with requirements of State law.

What Can Happen if a Company Does Not Comply with AB1825?

An exact penalty has yet to be determined. However, if a supervisor is accused of harassment and it is revealed that the legally required sexual harassment training did not take place, it is likely that damages imposed upon your company will be greater than if the company had complied with the law.

What Steps Should Your Company Take Next?