By Jan. 1, 2006, employers who operate in California and who employ 50 or more people must complete the first round of mandatory sexual harassment training for supervisors under Assembly Bill (AB) 1825. Signed into law on Sept. 30, 2004, AB 1825 requires employers to provide all supervisory employees two hours of sexual harassment training every two years.

The law deals specifically with sexual harassment training for supervisors, but its enactment also raises other questions related to anti-harassment training. For example, should employers provide training to supervisors on other forms of workplace harassment and discrimination? Should employers provide anti-harassment training for nonsupervisors?

To comply with AB 1825 by Jan. 1, 2006, employers must understand its requirements and take steps to meet their obligations under the law.

Can Online Courses Meet The “Effective” and “Interactive” Requirement?
The new law requires that the training consist of “classroom or other effective interactive training and education regarding sexual harassment …” (emphasis added) This language suggests that employers are not limited to providing employees classroom-based training but instead may provide online harassment prevention courses, as long as those courses are “effective” and “interactive.”

In my opinion, well-designed online courses often can be more effective than classroom presentations because in a classroom setting employees can just listen passively or tune out the instructor entirely without learning the material. In contrast, well-designed online courses can require the learner to answer questions and actively engage with the course material. Indeed, a well-designed online course can even require users to demonstrate that they have learned the information presented before being allowed to complete the course.

To meet the “interactive” requirement, an online course ideally should provide a means for learners to submit questions online and have their questions answered. While AB 1825 does not specifically address this point, an examination of Connecticut’s mandatory sexual harassment training law and its interpretation suggests that a question-and-answer feature is critical.
Connecticut’s law, which was passed in 1993, is similar to California’s AB 1825 in that it requires all employers with 50 or more employees in the state to provide two hours of sexual harassment training to supervisory personnel within six months of a person obtaining a supervisory position. Because of concerns about whether online courses could provide interactive training,

Connecticut’s Commission on Human Rights and Opportunities originally ruled that online courses would not suffice. However, on May 19, 2003, the commission issued a letter opinion stating that an online sexual harassment course would comply with the law if the course “provides an opportunity for students to ask questions and obtain answers in a reasonably prompt manner.”

Given that California’s Fair Employment and Housing Commission might use a similar analysis in evaluating whether an online course meets the “interactive” requirement of AB 1825, online harassment prevention courses ideally should allow employees to submit questions and receive answers online.

Which Employers Are Covered?
The law applies to all employers who operate in California and who regularly employ 50 or more employees or independent contractors. For example, if an employer has 40 employees and regularly receives the services of 15 temporary service workers, the employer is covered.

Assuming that the employer employs 50 or more persons within the state of California, the employer is covered even if it is headquartered outside California. There is some debate regarding whether the law applies to employers who do not employ 50 persons within the state of California but who do employ 50 or more persons located both inside and outside of California. The text of the legislation does not clarify this point, and some cases interpreting other California employment discrimination laws appear not to count out-of-state employees for coverage purposes. For employers in this situation, however, it is better to be safe than sorry, especially because the training requirements in AB 1825 are reasonable standards for any prudent employer to follow.

Who Is a “Supervisor” Who Must Be Trained?
While AB 1825 does not specifically define who is included in its definition of “supervisory,” California’s Fair Employment and Housing Act (FEHA) defines “supervisor” to include any individual with the authority “to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if … the exercise of that authority … requires the use of independent judgment.” (Cal. Code § 12926(r).)

As a result, employers should provide supervisory training as required by this law to any employee who has responsibility for any of the above personnel actions, even if the employee does not have an official supervisory title.

By When and How Often Must the Training Take Place?
AB 1825 takes effect immediately. An employer must ensure that any of its supervisory personnel who have not received two hours of sexual harassment training meeting the law’s content requirements since Jan. 1, 2003, receive the mandated training before Jan. 1, 2006. Note that even if an employer has provided sexual harassment training to its supervisory personnel since Jan. 1, 2003, the employer must again provide training to these employees before Jan. 1, 2006, if the previous training did not meet the requirements of AB 1825.

In addition, there is an ongoing obligation to train new supervisory personnel within six months of their assumption of a supervisory position. This will apply to all individuals assuming a supervisory position as of July 1, 2005.

Beginning on Jan. 1, 2006, the employer must provide all supervisory employees with the mandated training once every two years.

The law is clear that the two hours of sexual harassment training every two years is a mandatory minimum. In light of court decisions and Equal Employment Opportunity Commission (EEOC) guidelines indicating that training on sexual harassment and other forms of workplace harassment must be provided “periodically,” prudent employers should strongly consider providing harassment prevention training annually.

What Topics Must Be Covered?
AB 1825 sets forth very specific requirements for the content of the training. Specifically, the training must meet each of the following requirements:

Must the Training Provider Be An Expert in Employment Discrimination Law?
The law specifically requires that the training—be it instructor-led training or online training—be provided by “trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.” The law, of course, merely codifies what courts around the country have said for years. Specifically, courts have made clear that employers must ensure that the training provider:

For example, in Cadena v. Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000), the employer appealed a jury’s award of $300,000 in punitive damages in a sexual harassment case by arguing that it had provided harassment prevention training. However, the 10th 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.)

Accordingly, employers must ensure that their instructors or online course providers are experts in harassment, discrimination and retaliation law.

Should Employers Provide Training on Other Forms of Harassment?
While the new California law requires employers to provide two hours of sexual harassment training to supervisors, the law also makes clear that this training requirement is intended to represent a “minimum threshold” and does not “relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination.”

Sex is just one of many bases for harassment and discrimination that is prohibited by federal and state law. After the Supreme Court’s landmark decisions in the 1998 Faragher and Ellerth cases, federal court decisions and EEOC guidelines have made clear that employers must ensure that harassment prevention training covers not just sexual harassment but all types of unlawful harassment and retaliation.

Indeed, simply training on sexual harassment will not protect you from other types of harassment or retaliation claims. For example, in Reed v. Cracker Barrel Old Country Store, 171 F. Supp. 2d 741 (M.D. Tenn. 2001), the jury found that the plaintiff had proved her case of sexual harassment, but that the employer was not liable for the harassment because it had made reasonable efforts to prevent harassment, including providing harassment prevention training. The jury, however, found that the employer had retaliated against the plaintiff and awarded punitive damages for the retaliation. The employer argued that its training and other efforts to prevent sexual harassment should also protect it from punitive damages against retaliation. The court disagreed. According to the court, “Title VII clearly prohibits more than sexual harassment. … [and] punitive damages are also available under Title VII for more than just sexual harassment. … [An employer’s] good-faith compliance must relate to the specific claim being raised under Title VII.” (emphasis added)

While sexual harassment lawsuits tend to grab the headlines, employers’ risk of harassment lawsuits based on other protected characteristics is actually greater. Of the 14,273 harassment charges that were filed with the EEOC during 2003, 34 percent were sex-based, 17 percent were national-origin-based, and 43 percent were race-based. Employers can expect harassment charges based on age to increase as the baby boomers grow old. In addition, since Sept. 11, 2001, the number of religious and national origin harassment and discrimination claims filed with the EEOC has increased dramatically. The EEOC reports that between Oct. 1, 2001 and Sept. 30, 2002, allegations of religious bias were up 21 percent, age bias 14.5 percent and national origin bias 13 percent over the previous year.

Thus, not only must California employers provide supervisors two hours of training every two years on sexual harassment, but—like all other employers—they also should periodically provide additional training on other forms of workplace harassment and discrimination.

Should Employers Provide Training to Nonsupervisory Employees?
The new California law deals specifically only with California employers’ responsibility to provide sexual harassment training to supervisors. But employers still have a responsibility under California and federal law to provide workplace harassment prevention training periodically to nonsupervisory employees as well.

In addition to the requirements of AB 1825, the California FEHA requires employers to take “all reasonable steps to prevent harassment from occurring.” (Cal. Gov code § 12950.) According to the California Department of Fair Employment and Housing (DFEH), such reasonable steps include providing all employees sexual harassment training. Indeed, according to the DFEH, a sexual harassment training program for all employees “is not only required by law, but it is the most practical way to avoid or limit damages if harassment should occur despite preventative efforts.”

According to the DFEH, “all employees should be made aware of the seriousness of violations of the sexual harassment policy.” In addition to sexual harassment training, all employees must receive from their employers a copy of the DFEH pamphlet “Sexual Harassment is Forbidden by Law” (DFEH-185) or an equivalent document.

Under federal law, EEOC guidelines indicate that employers periodically “should provide training to all employees to ensure they understand their rights and responsibilities” relating to workplace harassment. (EEOC, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002, June 18, 1999.)

Employers who fail to provide harassment prevention training to all employees may be unable to establish an affirmative defense to a harassment lawsuit. For example, in Yaccarino v. U.S. Postmaster General, EEOC 170-AO-8812X (Sept. 6, 2001), the EEOC held that the Postal Service failed to establish an affirmative defense because it could show no evidence “that training was provided by the agency to supervisors and employees to prevent harassment.” Thus, California employers should continue to provide periodic workplace harassment prevention training to all employees—not just supervisors. The training provided to nonsupervisors, however, may be shorter than two hours and does not have to specifically address each of the topics listed in AB 1825.

What Should Covered Employers Do Now?
Employers covered by California’s new law should take the following steps if they have not already done so.

1. Determine what training on sexual harassment has taken place within the organization since Jan. 1, 2003. The goal will be to find out what the organization needs to do before Jan. 1, 2006, to be in compliance with AB 1825. Employers should obtain answers to the following questions:

• Has training on sexual harassment been conducted since Jan. 1, 2003?
• Did the content of the training meet the requirements of AB 1825? If not, what was missing?
• How long was the training that met the content requirements of AB 1825? Was it at least two hours long?
• Was the training created and provided by experts in harassment law, as described in AB 1825?

2. If a training course meeting the requirements of AB 1825 was provided to employees since Jan. 1, 2003, determine who attended the training.
• Was it given to all supervisory personnel, as defined under California antidiscrimination law?
• If not, who did not receive it? These employees will need to be trained before Jan. 1, 2006.
• Which employees have taken on supervisory positions since the training? These employees also will need to be trained before Jan. 1, 2006.

3. If a training course meeting the requirements of AB 1825 was provided to employees since Jan. 1, 2003, determine whether record keeping is sufficient to prove that the training met all the requirements of AB 1825 and to show which employees received the training.

4. If the employer must train all or some of its supervisory employees between now and Jan. 1, 2006, it should set up adequate record keeping on these trainings. Automatic record keeping of employee training is included in some online training courses.

5. Estimate how many more employees will be receiving supervisory positions between now and July 1, 2005. These employees will need to be trained before Jan. 1, 2006.
• How will the organization keep track of the training of its existing supervisory personnel?
• How will it keep track of newly hired or promoted supervisors?

6. Identify who will provide any required training between now and Jan. 1, 2006. It is also not too early to begin planning for the training requirements beyond Jan. 1, 2006.
• Will this training be provided in-house or by an outside organization, or through a combination of the two?
• Will it be classroom or online training, or a combination of the two?
• Obtain information from the training provider to show that the provider possesses the expertise required under AB 1825. Be prepared to use this information to defend the training program to state agencies or during litigation.
• Obtain information to show that the course content and course length meet the requirements of AB 1825. Again, this information must be persuasive in the event of a future investigation or litigation.

7. Institute a proposed training schedule for training needs prior to, and beyond, Jan. 1, 2006.
• Ensure that all supervisors are trained within six months of hire.
• Ensure that all supervisors receive two hours of sexual harassment training every two years going forward.
• Set up a database to track training provided to supervisors and determine deadlines for future training.

8. Continue to provide periodic training on sexual harassment and all forms of unlawful harassment to all employees—including supervisors and nonsupervisors. Training for nonsupervisors may be shorter than two hours.

Michael W. Johnson a former civil rights attorney in the U.S. Department of Justice and a graduate of Harvard Law School.