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Beyond California
On Sept. 30, 2004, California enacted a law that requires employers who operate in California and who employ 50 or more persons to provide all supervisory employees 2 hours of sexual harassment training every 2 years. Employers must complete the first round of training for supervisors by Jan. 1, 2006. After that date, new supervisors must be trained within 6 months of obtaining a supervisory position. Employers are scrambling to ensure that they have trained all California-based supervisors by year's end. This article describes why employers should not focus simply on training supervisors in California. Instead, employers should provide training:
- On all forms of unlawful workplace harassment, not just on sexual harassment;
- To all employees, not just to supervisors;
- To all employees, not just to those located in California.
We also examine the consequences of not providing harassment prevention training to all employees in all states. Specifically, employers who fail to provide harassment prevention training to all employees may:
- Expose themselves to punitive damages in employee lawsuits; and
- Lose their ability to raise a defense to harassment lawsuits.
Preventing Unlawful Harassment: Training Is a Must
No matter the state in which they are located, employers should provide training that addresses all forms of unlawful workplace harassment, not just sexual harassment. While the new California law requires employers to provide 2 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 … ”
Harassment and discrimination based on sex is just one of the many types of discrimination protected by state and federal law. As discussed in further detail below, 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 all types of unlawful harassment and retaliation.
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