April 3, 2009

Your Workplace and Anti-Harassment Training

A major area for litigation that continues to grow on both the federal and state fronts is that of Harassment and Discrimination. Under federal law, Title VII prohibits workplace harassment and discrimination based on race, color, national origin, religion, sex, pregnancy, sex stereotyping. In California, the state legislature has adopted Title VII and expanded on the protections afforded under anti-harassment/discrimination laws to include protections based on religious creed, color, ancestry, physical disability, mental disability, medical condition, marital status, and perceived sexual orientation.

Federal law requires employers in the U.S. respond immediately to claims of sexual harassment and provide assurances that work environments are free from harassment. The EEOC has established minimum standards and guidelines which states should adopt in order to adhere to anti-harassment laws. The EEOC Enforcement Guidance provides that employers should ensure that supervisors and managers receive periodic training so they fully understand their responsibilities under anti-harassment laws and harassment/discrimination complaint procedures.

Many states, prompted by the federal government, have passed training mandates across a broad spectrum of topics for employers. A prime example is California’s AB 1825 otherwise known as California’s Sexual Harassment Prevention Training law. California employers are subject to the following requirements if they have 50 or more employees.

Two Hours of Training Every Two Years. Must be provided to each supervisory employee, every two years.

New Hires and Promotions. New supervisory employees must be trained within six months of their assumption of a supervisory position, and then every two years.

High Quality Training Required. The training mandated must be of a high quality, conducted via "classroom or other effective interactive training" and must include the following topics: Information and practical guidance regarding federal and state statutory laws about sexual harassment. Information about the correction of sexual harassment and the remedies available to victims of sexual harassment. Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation.

Failure to Comply Opens the Door to Harassment Lawsuits. A claim that an employer failed to provide AB 1825-mandated sexual harassment training does not automatically result in the liability of an employer for harassment. Plaintiffs will argue, however, that the failure to meet the training mandate is evidence of an employer's failure to take all reasonable steps to prevent sexual harassment.

Workplace professionals argue that the training required under AB 1825 must extend beyond sexual harassment and to other forms of prohibited harassment, discrimination and retaliation. Thus the well-rounded sexual harassment training will include, at the minimum, discussions of "how harassment of an employee can cover more than one basis.”

an article by Michele O'Donnell

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