Nuances of California's Sexual Harassment Training Law
By this time, everyone knows that California has joined Connecticut in requiring managers to participate in sexual harassment prevention training. Much has been said, but also much has been understated. This legislation will likely result in the birth of a cottage industry of providers seeking to cash in on this new requirement. Many providers will have little experience in the area and will be unable to effectively ensure that participants in the training are adequately trained. Unfortunately, the buyer must beware. Littler Mendelson's ASAP Newsletter on this topic provides some insightful commentary the selection of trainers and the training overall (the important aspects I have highlighted):
The quality standards require an employer to closely examine its training programs. Merely sitting a supervisor down and having her or him view a video or non-interactive web-based product - "show and go" - would likely not meet the statutory requirements to conduct "classroom ... or ... effective interactive training and education." Would classroom training by someone who has done a significant amount of harassment training but who has no practical experience preventing harassment meet the requirement to have the training conducted by those with "knowledge and expertise" in preventing harassment, discrimination, and retaliation? Although not entirely certain, the answer will likely be "no." Given this uncertainty, the most prudent approach is to use trainers and training organizations with both a solid training and harassment prevention background regardless of whether the training is done live or on-line.
The newsletter further notes that the legislation is merely a floor, not the maximum of what a proactive employer should necessarily do to adequately prevent harassment in the workplace. In other words, it is possible that an employer could adequately comply with the new state law, but fail to adopt the other necessary requirements of a valid Ellerth/Faragher defense for a federal discrimination claim. Thus, while everyone is aware (hopefully) that we now must do training, the obligation really has existed for some time now. It has existed in the context of a variety of other necessary practices that an employer must have in order to adequately defend itself.
