California Employers who have at least 50 employees are required to provide at least two hours of sexual harassment training to their supervisors and managers every two years. New supervisors and managers must be trained within six months. This requirement exists in the Fair Employment & Housing Act at Govt. Code Sec. 12950.1.
The training has to be interactive, must be conducted by a qualified trainer, and must cover at least:
the policy against sexual harassment
definitions of sexual harassment
descriptions and examples of sexual harassment
responding to events of sexual harassment
preventing sexual harassment
protection against sexual orientation and gender identity harassment
bullying in the workplace
A 2005 survey indicated more than 60% of California start-up companies had no sexual harassment policy as is required by state and federal law. In reality, probably more than 90% of California small businesses fail to have sexual harassment policies that include prohibitions against same-sex harassment and gender identity harassment. Failure to have a written policy and statement against harassment is a violation of the law itself, which requires employers to take all measures available to prevent such harassment from occurring in the first place.
The Lesson: Maintain an up-to-date policy, and train your supervisors and managers if you have at last 50 employees.
Starting in 2015, California employers with at least 50 employees must contain a new Sexual Harassment – Anti-bullying training component: The training must advise each Manager on how to prevent “abusive conduct” in the workplace. Abusive Conduct is defined as: “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests … [and] may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”
Here’s the problem with the new law: The Legislature has decided that “abusive conduct” will remain legal. No laws have been passed to ban “abusive conduct.” But small businesses must take the time and expense to train their Managers on the definition and prevention of “abusive conduct” in the workplace despite the fact that such conduct is still legal.
It may be that the single benefit to this new law for employees is to identify another method for defining a “hostile work environment.” Employers are liable for allowing a hostile work environment to occur, when that hostile environment has some connection to the employee’s sex, race, ethnicity, religion, age, and/or disability. But a hostile work environment, or abusive conduct in that environment, is still legal when not connected with any legally protected characteristic. If you have any questions about whether the new “abusive conduct” definition applies to your work place, please contact your legal counsel.