Update Your Harassment Prevention Training
Authored by Steve Holden. Published in the Sacramento Business Journal May 2014.
Harassment prevention training should be conducted in virtually every California workplace. Larger employers (50+ employees) are specifically required by law to perform training. Smaller employers are not specifically required to train. They are, however, required “to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” And it is hard to argue that training is unreasonable or unnecessary. The training in California must contain specific content and must be effective. To ensure that harassment training fulfills these mandates, the training must be updated to account for changes in law and to keep participants engaged.
Training Requirements
Employers with 50 or more employees are required to train all managers and supervisors within six months of being hired or moved into a supervisory position and every two years thereafter. The training must be at least two hours in length and must include information and practical guidance regarding the applicable laws and the prevention and correction of sexual harassment. It must also cover the remedies available to workers subjected to harassment and include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation. The training must be interactive and presented by trainers with specific knowledge and expertise. Online training is permissible provided it meets all the content requirements, is interactive and is created by experts.
Even though the specific legal requirement to train applies to larger employers only, smaller employers are effectively forced to perform very similar training. Because training has become so common in California and readily available in several forms, an employer would be hard-pressed to argue that it took all reasonable steps to prevent harassment if some form of employee training is not conducted. Although the law only requires the training of managers and supervisors, some form of harassment prevention training for all employees is advisable for the same reason.
Content Matters
At the bare minimum, the training must include the eleven items specified in the regulations. These include statutory law, case law principles, remedies, strategies to prevent harassment, practical examples, complaint handling and the essential elements of an anti-harassment policy. In addition to full coverage of the eleven items, the training must meet the learning objectives of (1) assisting employers in changing or modifying workplace behaviors that create or contribute to sexual harassment and (2) developing, fostering and encouraging a set of values in the supervisors that will assist them in preventing and effectively responding to incidents of harassment.
Content Updating
Effective January 1, 2014, the Legislature amended the law prohibiting sexual harassment to specifically state that a plaintiff alleging harassment is not required to prove that the harassment was motivated by sexual desire. Prior to the amendment there was some question about the need to prove sexual desire. The question arose out of cases where a male employee was allegedly harassed by other male employees. Because the courts were not entirely uniform in the handlings of such cases, the Legislature clarified the applicable law. This clarification must make its way into existing training programs to ensure that employees understand current law.
Program updating is also necessary if the training is too focused on traditional male-to-female harassment. In the traditional male-to-female harassment case, sexual desire is generally present and fairly evident. Most training programs cover female-to-male harassment as well as same-sex harassment. But, some programs may imply or give the false impression that sexual desire is a necessary component. An updated program will ensure that participants understand that harassment without sexual desire can be unlawful. This should be done with updated factual scenarios and participant discussions. Updated scenarios increase the participants’ breadth of understanding, reduce the potential for boredom and increase the overall effectiveness of the training. Repetition of same fact scenarios year after year is a great way to increase the chances that your training is defective. Make sure your training is up-to-date, fresh and engaging.