We’ve gotten through the initial round of our required sexual harassment training. Whew! But I want to expand it to include other types of harassment, such as religious harassment, disability harassment, and so on. Which elements do you recommend we include, and should we incorporate this training into the sexual harassment training, or do it separately? — Anonymous
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We sought the advice of Sandra Rappaport on this issue, one that many employers are wrestling with.
There has been some uncertainty over the question of whether the new law (Gov. Code Section 12950.1) requires only sexual harassment training or whether the training may (or must) include training, on other types of harassment, such as the types mentioned in your question. The title of the statute refers only to sexual harassment, and the focus of the statute’s language clearly is on sexual harassment. As a result, many have interpreted the requirement to mean that only sexual harassment may be covered in the two-hour session. At the same time, the statute requires the training to include examples of how to prevent “harassment, discrimination, and retaliation” generally, without reference to sexual harassment specifically. Thus, it seems that a two-hour training program with a focus on sexual harassment combined with examples of other forms of harassment meets the statute’s technical requirements, but a two-hour training program devoted solely to sexual harassment would also meet the requirements.
As a practical matter, however, eliminating training on other types of harassment would be quite risky. The Fair Employment and Housing Act also requires that employers take all reasonable steps necessary to prevent and correct harassment and discrimination, and that obligation is not limited to sexual harassment. A training program just on sexual harassment therefore could subject an employer to liability under that portion of the law.
Additionally, another benefit of expanding your training topics is that in California, an employer can defend against harassment cases using the “avoidable consequences doctrine.” This means that if an employee has not taken advantage of preventive opportunities the employer provides, such as training, the employer may be able to defeat a harassment claim on that basis. But if the employer has only provided sexual harassment training, the employer would not be able to use the avoidable consequences doctrine to defend against a claim of another form of harassment.
The upshot is that training on other types of harassment is important. But must additional training be done on top of the two hours of sexual harassment training, or can it be included in the two hours? The statute provides that the training and education required “should not discourage or relieve any employer from providing for longer, more frequent, or more elaborate training and education regarding workplace harassment or other forms of unlawful discrimination in order to meet its obligations to take all reasonable steps necessary to prevent and correct harassment and discrimination.” Given this language, an employer’s legal requirements would be satisfied if it provided a two-hour training session on sexual harassment, as well as additional training sessions on other forms of harassment and discrimination. But that could prove to be quite impractical and costly.
It is likely that including multiple types of harassment in the two-hour training is permitted. The legislation’s author has stated that the training statute was intended to cover both sexual harassment and other forms of harassment. Additionally, the statute’s reference to general “workplace harassment” appears to allow employers to include other forms of harassment in their two hours of training. Finally, the Fair Employment and Housing Commission recently issued a set of draft regulations to provide guidance to employers on this and other issues. The proposed regulations specify that the training must include, but is not limited to, “a definition of unlawful harassment under the Fair Employment and Housing Act and Title VII of the federal Civil Rights Act of 1964. In addition to a definition of sexual harassment, an employer may provide a definition of other forms of harassment covered by the FEHA… and discuss how harassment of an employee can cover more than one basis.” These regulations were expected to become final after public hearings in early February. In the meantime, employers should include training on forms of workplace harassment other than sexual harassment in their supervisor training sessions.
Sandra Rappaport is a partner at the San Francisco office of law firm Hanson, Bridgett, Marcus, Vlahos & Rudy.