New Law Requires Harassment Prevention Training
The New Year inevitably triggers additional obligations for California's employers. The new mandates for 2005 include the requirement that employers with 50 or more employees train supervisors on harassment prevention. Employers are required to provide at least two hours of such training every two years. The new law, codified at Government Code Section 12950.1, contains sparse guidance on the content of such training. It declares only that the training must be interactive, and that it must cover state and federal law prohibiting harassment. In light of the vagueness of the new statute, attorneys advising California employers can anticipate ongoing inquiries about training requirements and recommended course content. Although the training may vary depending upon the size of the company and the nature of the business, it should emphasize practical advice, rather than legal theory. The following suggested format covers the key points, and should meet most client needs.
HARASSMENT PREVENTION, STEP BY STEP
Topic No. 1:
Supervisors may be held personally liable for harassment that occurs under their watch. Supervisors should know they may be held personally liable for harassment occurring under their watch. California Government Code section 12940(i) expressly provides that individuals who harass their co-workers may be sued and held liable for consequential damages, including attorney's fees. The Government Code is less clear about the responsibility of supervisors for such harassment when the supervisor does not personally engage in the harassing conduct. Nonetheless, the applicable case law suggests that supervisors who ignore illegal conduct when they have the authority to stop it can be sued for "aiding and abetting" such conduct. As such, it is in every supervisor's self-interest to prevent harassment and to respond effectively to harassment complaints.
Topic No. 2:
Know the law. Most supervisors recognize that sexual harassment at work is prohibited under both federal and state law. Understanding the legal definition of harassment is typically more of a challenge. Harassment is generally defined as offensive conduct that is either severe or pervasive and that interferes with the victim's work environment. Under California law, sex harassment refers to not only unwelcome sexual advances, but harassment based upon the victim's gender, pregnancy, childbirth or related medical conditions. In light of the expansive definition of "sex harassment," the following conduct, when it reasonably interferes with the victim's ability to work, may constitute illegal harassment:
- Repeated staring at an employee after the employee refuses requests for dates; Cursing at an employee - regardless of the reason - where the cursing includes terms demeaning to the opposite sex; Inquiring on a regular basis about an employee's social life, sexual preferences or dating habits; Regularly commenting on an employee's manner of dress or appearance or size; Advising an employee that her pregnancy will impact her career options or chances for promotion; or
- Requiring sexual favors as a condition of employment benefits.
Topic No. 3:
Distinguishing illegal conduct from just plain bullying. As supervisors realize, bullying at work triggers many more complaints than sexual harassment. Commonly, a supervisor, manager or owner will vent his or her frustrations on those least equipped to fight back - a powerless new recruit, or a temporary worker. For better or worse, bullying is not illegal, and, unless based upon the victim's gender, does not constitute illegal harassment. Supervisors should be advised, however, that where the bullying is aimed at employees of the opposite sex, an inference may arise that the conduct is based upon the employee's gender.
Topic No. 4:
Distinguishing sex harassment from other forms of illegal harassment.No sex harassment seminar would be complete without a reference to the other types of prohibited harassment. Supervisors should be advised to prevent and remedy all illegal harassment, including harassment based upon age, national origin, sexual preference, disability, race, color, ethnicity, religion, medical condition, or ancestry.
Topic No. 5:
Know the employer's policies.Amazingly, many supervisors are ignorant of their employer's anti-harassment policies and procedures. Most companies in California with 50 or more employees will have in circulation an employee handbook containing an express-anti harassment policy, as well as procedures in place for complaining about harassment and correcting it. Supervisors must be able to articulate this policy, and to understand how it is implemented and enforced. Supervisors must know who is authorized to handle and investigate complaints. Employers who lack such a policy should adopt one prior to commencing their training program.
Topic No. 6:
Recognize employee complaints.Victims of harassment are typically reluctant to "blow the whistle" on a co-worker. As such, complaints about co-workers are commonly cryptic and difficult to decipher. Complaints stemming from outrageous conduct may only hint at illegal conduct. Supervisor should be warned to treat all complaints seriously. All complaints should be forwarded to the person responsible for investigating and responding to complaints. Ignoring a complaint, or assuming it is unmeritorious, places both the supervisor and the employer at risk. Respond promptly and comprehensively to all complaints.
Topic No. 7:
Be prepared to remedy the employee complaint.Where a harassment complaint is investigated and deemed legitimate, the employer is responsible for ensuring that the offensive conduct stops. The offensive conduct must be eliminated at any cost, up to and including the termination of the employee perpetrating the harassment. The employer must also prevent any retaliation against those who complain or those who support a complainant. Because supervisors are uniquely positioned to monitor the work environment, they should be trained to follow through on a complaint to ensure that the offensive conduct has stopped and the complainant is able to resume his or her job duties. Where time permits, the training should include a discussion of the sanctions imposed upon companies and individuals found responsible for harassment, including awards of consequential damages such as compensation for emotional distress, back pay, future wage loss, medical costs, if any, and attorney's fees.
Remind employers to document attendance at the seminars to demonstrate compliance with the training mandate. Finally, as training must be conducted every two years, schedule the refresher course for 2007.