Beyond California

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, 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).

Of the 109,472 harassment charges that were filed with the EEOC during the 1990s, only 33% were sex-based, while 14% were national-origin-based, and 43% were race-based. Employers can expect harassment charges based on age to increase as the “baby boomers” age. In addition, since 9/11, 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%, age bias were up 14.5%, and national origin bias were up 13% over the previous year.

Not Just Supervisors

While the new California law only directly spells out California employers' responsibilities to provide sexual harassment training to supervisors, employers still have a responsibility under California and federal law to provide workplace harassment prevention training periodically to non-supervisory employees as well.

In addition to the requirements of AB 1825, the California Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps to prevent harassment from occurring.” 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. And, as described below, employers who fail to provide harassment prevention training to all employees may be unable to raise an affirmative defense to a harassment lawsuit.

Other States

California is not the only state that has enacted a law that requires or “encourages” employers to provide harassment prevention training to some or all of their employees. For example, Connecticut requires all private and public employers with 50 or more employees to provide 2 hours of sexual harassment training to all supervisory employees within 6 months of the assumption of a supervisory position. Likewise, Maine requires all private and public employers with 15 or more employees to provide sexual harassment training to all new employees within 1 year of beginning employment. Several other states — including Colorado, Florida, Illinois, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Texas, Utah, and Vermont — have enacted laws that “encourage” public and/or private employers to provide training to their employees on sexual harassment prevention. (To receive a list of the specific training requirements for each of these and other states, e-mail your request to the author at /Admin/cgi-bin/udt/[email protected].)

Second, even in states where there is no explicit statutory requirement for harassment prevention training, state courts are interpreting their state laws to mean that training essential. For example, in the 2002 case, Gaines v. Bellino, the New Jersey Supreme Court held that, in judging whether an employer has been negligent in preventing workplace harassment, state courts should consider whether the employer made anti-harassment training available to all employees in its organization. The court stated that an employer that provides anti-harassment training helps demonstrate the employer's “unequivocal commitment from the top” to preventing harassment.

Third, the EEOC has published guidelines encouraging employers to provide harassment prevention training. According to the EEOC guidelines, if feasible:

“the employer should provide training to all employees to ensure they understand their rights and responsibilities [relating to workplace harassment] … An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures. Periodic training can help achieve that result.”

Fourth, as described in further detail below, even in states that have not yet specifically enacted laws requiring or encouraging harassment prevention training, state and federal court decisions have made clear that training is essential.

What Happens If All Employees Do Not Receive Training

The Supreme Court, lower federal and state courts, and federal and state guidelines have made it clear that employers should periodically provide harassment prevention training to every employee. Employers who fail to provide such training may expose themselves to punitive damages and forfeit their ability to raise an affirmative defense in employee lawsuits.

Failure to train exposes employer to liability for punitive damages. In the 1999 case Kolstad v. American Dental Association, the Supreme Court impressed upon employers the necessity of training employees on harassment and discrimination prevention. In this case, the Court addressed when an employer would be liable under Title VII, the primary federal law prohibiting workplace harassment and discrimination, for punitive damages. Punitive damages are designed to “first, punish a wrongdoer for misconduct, and second, to warn others against doing the same in the future.”

Unfortunately for employers, the Court set a relatively low standard for imposing punitive damages, ruling that the plaintiff does not have to show that the conduct was “egregious” or “outrageous,” but only that the employer had acted with “malice or reckless indifference” to the employee's rights. Fortunately for proactive employers, however, the court ruled that employers may avoid punitive damages for harassment and discrimination cases if the employer can show that it has made “good faith efforts” to prevent harassment and discrimination. In defining what would be considered “good faith efforts,” the Court stated:

“The purposes underlying Title VII are … advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions. (emphasis added).”

Numerous courts have held that to avoid punitive damages, employers must provide training to their employees on harassment and discrimination prevention. For example, in Swinton v. Potomac Corporation, the Ninth Circuit Court of Appeals affirmed a punitive damage award of $1 million in a racial harassment case. The court began its opinion with the following sentence: “This case should serve as a reminder to employers of their obligation to keep their workplaces free of discriminatory harassment.” The court pointed out that, while the company had an anti-harassment policy, it chose not to educate its employees sufficiently on the policy and of the importance of avoiding racial harassment in the workplace. Thus, it could not “now be heard to protest” the imposition of punitive damages.

Likewise, in Anderson v. GDC, Inc., the Fourth Circuit ruled that punitive damages were appropriate in a sexual harassment case where an employer failed to adopt any harassment or discrimination policy or conduct any training on those subjects. Similarly, in Hanley v. Doctors Hospital of Shreveport, the court upheld a jury's award of punitive damages in a sexual harassment/retaliation case, noting that — while the employer had handed out its sexual harassment policy to employees when hired — it had not provided “training to employees regarding sexual harassment issues.”

Employers who fail to provide prevention training may forfeit the ability to raise a defense to harassment claims. In 1998, the U.S. Supreme Court decided two cases that gave employers a strong incentive to provide their employees harassment prevention training — the training could help them escape liability in harassment cases, even if the harassment actually happened. In two companion cases — Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth — the Court addressed the question of when an employer would be liable for harassment committed by a supervisor. Unfortunately for employers, the Court ruled that employers are presumed to be automatically liable for harassment committed by a supervisor. Fortunately for proactive employers, the Court ruled that-assuming the supervisory harassment did not culminate in an adverse employment action-an employer can avoid liability for “hostile environment” harassment if it can prove that: 1) the employer took reasonable care to “prevent and correct promptly” any harassing behavior; and 2) the harassment victim unreasonably failed to complain. (emphasis added).

Subsequent lower court decisions have made it clear that, in order to raise an affirmative defense to harassment claims, employers may not rely simply on having an anti-harassment policy, but also must provide their employees harassment prevention training. For example, in Miller v. Woodharbor Molding & Millworks, Inc., a federal district court in Iowa held that the employer could not raise an affirmative defense to a sexual harassment lawsuit because, while the employer maintained an anti-harassment policy, it failed to train its supervisors on the anti-harassment policy and complaint procedure. Similarly, in Hill v. The Children's Village, a federal district court in New York denied the employer's motion for summary judgment in a harassment case, noting that the non-profit employer had failed to train its supervisors “to even recognize sexual harassment when they saw it.”

Conclusion

While employers currently are focusing on complying with the new California law that requires 2 hours of sexual harassment training for supervisors, employers must not forget about their obligations to provide training on preventing all forms of unlawful harassment. Employers should provide this training to all employees, not just supervisors and not just those employees located in 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.

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, 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).

Of the 109,472 harassment charges that were filed with the EEOC during the 1990s, only 33% were sex-based, while 14% were national-origin-based, and 43% were race-based. Employers can expect harassment charges based on age to increase as the “baby boomers” age. In addition, since 9/11, 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%, age bias were up 14.5%, and national origin bias were up 13% over the previous year.

Not Just Supervisors

While the new California law only directly spells out California employers' responsibilities to provide sexual harassment training to supervisors, employers still have a responsibility under California and federal law to provide workplace harassment prevention training periodically to non-supervisory employees as well.

In addition to the requirements of AB 1825, the California Fair Employment and Housing Act (FEHA) requires employers to take “all reasonable steps to prevent harassment from occurring.” 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. And, as described below, employers who fail to provide harassment prevention training to all employees may be unable to raise an affirmative defense to a harassment lawsuit.

Other States

California is not the only state that has enacted a law that requires or “encourages” employers to provide harassment prevention training to some or all of their employees. For example, Connecticut requires all private and public employers with 50 or more employees to provide 2 hours of sexual harassment training to all supervisory employees within 6 months of the assumption of a supervisory position. Likewise, Maine requires all private and public employers with 15 or more employees to provide sexual harassment training to all new employees within 1 year of beginning employment. Several other states — including Colorado, Florida, Illinois, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Texas, Utah, and Vermont — have enacted laws that “encourage” public and/or private employers to provide training to their employees on sexual harassment prevention. (To receive a list of the specific training requirements for each of these and other states, e-mail your request to the author at /Admin/cgi-bin/udt/[email protected].)

Second, even in states where there is no explicit statutory requirement for harassment prevention training, state courts are interpreting their state laws to mean that training essential. For example, in the 2002 case, Gaines v. Bellino, the New Jersey Supreme Court held that, in judging whether an employer has been negligent in preventing workplace harassment, state courts should consider whether the employer made anti-harassment training available to all employees in its organization. The court stated that an employer that provides anti-harassment training helps demonstrate the employer's “unequivocal commitment from the top” to preventing harassment.

Third, the EEOC has published guidelines encouraging employers to provide harassment prevention training. According to the EEOC guidelines, if feasible:

“the employer should provide training to all employees to ensure they understand their rights and responsibilities [relating to workplace harassment] … An employer should ensure that its supervisors and managers understand their responsibilities under the organization's anti-harassment policy and complaint procedures. Periodic training can help achieve that result.”

Fourth, as described in further detail below, even in states that have not yet specifically enacted laws requiring or encouraging harassment prevention training, state and federal court decisions have made clear that training is essential.

What Happens If All Employees Do Not Receive Training

The Supreme Court, lower federal and state courts, and federal and state guidelines have made it clear that employers should periodically provide harassment prevention training to every employee. Employers who fail to provide such training may expose themselves to punitive damages and forfeit their ability to raise an affirmative defense in employee lawsuits.

Failure to train exposes employer to liability for punitive damages. In the 1999 case Kolstad v. American Dental Association, the Supreme Court impressed upon employers the necessity of training employees on harassment and discrimination prevention. In this case, the Court addressed when an employer would be liable under Title VII, the primary federal law prohibiting workplace harassment and discrimination, for punitive damages. Punitive damages are designed to “first, punish a wrongdoer for misconduct, and second, to warn others against doing the same in the future.”

Unfortunately for employers, the Court set a relatively low standard for imposing punitive damages, ruling that the plaintiff does not have to show that the conduct was “egregious” or “outrageous,” but only that the employer had acted with “malice or reckless indifference” to the employee's rights. Fortunately for proactive employers, however, the court ruled that employers may avoid punitive damages for harassment and discrimination cases if the employer can show that it has made “good faith efforts” to prevent harassment and discrimination. In defining what would be considered “good faith efforts,” the Court stated:

“The purposes underlying Title VII are … advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII's prohibitions. (emphasis added).”

Numerous courts have held that to avoid punitive damages, employers must provide training to their employees on harassment and discrimination prevention. For example, in Swinton v. Potomac Corporation, the Ninth Circuit Court of Appeals affirmed a punitive damage award of $1 million in a racial harassment case. The court began its opinion with the following sentence: “This case should serve as a reminder to employers of their obligation to keep their workplaces free of discriminatory harassment.” The court pointed out that, while the company had an anti-harassment policy, it chose not to educate its employees sufficiently on the policy and of the importance of avoiding racial harassment in the workplace. Thus, it could not “now be heard to protest” the imposition of punitive damages.

Likewise, in Anderson v. GDC, Inc., the Fourth Circuit ruled that punitive damages were appropriate in a sexual harassment case where an employer failed to adopt any harassment or discrimination policy or conduct any training on those subjects. Similarly, in Hanley v. Doctors Hospital of Shreveport, the court upheld a jury's award of punitive damages in a sexual harassment/retaliation case, noting that — while the employer had handed out its sexual harassment policy to employees when hired — it had not provided “training to employees regarding sexual harassment issues.”

Employers who fail to provide prevention training may forfeit the ability to raise a defense to harassment claims. In 1998, the U.S. Supreme Court decided two cases that gave employers a strong incentive to provide their employees harassment prevention training — the training could help them escape liability in harassment cases, even if the harassment actually happened. In two companion cases — Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth — the Court addressed the question of when an employer would be liable for harassment committed by a supervisor. Unfortunately for employers, the Court ruled that employers are presumed to be automatically liable for harassment committed by a supervisor. Fortunately for proactive employers, the Court ruled that-assuming the supervisory harassment did not culminate in an adverse employment action-an employer can avoid liability for “hostile environment” harassment if it can prove that: 1) the employer took reasonable care to “prevent and correct promptly” any harassing behavior; and 2) the harassment victim unreasonably failed to complain. (emphasis added).

Subsequent lower court decisions have made it clear that, in order to raise an affirmative defense to harassment claims, employers may not rely simply on having an anti-harassment policy, but also must provide their employees harassment prevention training. For example, in Miller v. Woodharbor Molding & Millworks, Inc., a federal district court in Iowa held that the employer could not raise an affirmative defense to a sexual harassment lawsuit because, while the employer maintained an anti-harassment policy, it failed to train its supervisors on the anti-harassment policy and complaint procedure. Similarly, in Hill v. The Children's Village, a federal district court in New York denied the employer's motion for summary judgment in a harassment case, noting that the non-profit employer had failed to train its supervisors “to even recognize sexual harassment when they saw it.”

Conclusion

While employers currently are focusing on complying with the new California law that requires 2 hours of sexual harassment training for supervisors, employers must not forget about their obligations to provide training on preventing all forms of unlawful harassment. Employers should provide this training to all employees, not just supervisors and not just those employees located in California.