BILL ANALYSIS
AB 1825
Page 1
Date of Hearing: April 20, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
AB 1825 (Reyes) - As Amended: March 24, 2004
As Proposed to be Amended
SUBJECT : SEXUAL HARASSMENT TRAINING
KEY ISSUE : SHOULD LARGE EMPLOYERS BE REQUIRED TO PROVIDE AT
LEAST TWO HOURS OF SEXUAL HARASSMENT TRAINING TO SUPERVISORY
EMPLOYEES IN ORDER TO ASSIST IN THE PREVENTION OF SEXUAL
HARASSMENT?
SYNOPSIS
This bill, modeled on a Connecticut statute, would require large
employers to provide at least two hours of sexual harassment
training to supervisory employees. Supporters contend that
sexual harassment in the workplace remains a major problem and
that this bill represents a "pro-active approach" to reducing
sexual harassment. Supporters argue that many legally
sophisticated businesses, large and small, already provide
training not just to supervisory staff but to all employees
because it is prudent to do so under existing law. For example,
the Assembly requires training for all employees every two
years. Opponents argue that, while well intended, the bill
inappropriately takes a "one-size-fits-all" approach and
emphasizes training quantity over quality. Opponents further
argue that the bill is unnecessary and overbroad, and will
subject employers to liability even where no sexual harassment
has occurred.
SUMMARY : Prescribes sexual harassment training of supervisory
employees. Specifically, this bill, as proposed to be amended:
1)Requires employers with 50 or more employees to provide at
least two hours of interactive training and education
regarding sexual harassment prevention, identification and
correction to all supervisory employees within one year of
January 1, 2005, and thereafter for all new supervisory
employees within six months of appointment to a supervisory
position. Thereafter, refresher training would be required
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once every two years. Employers would be deemed in compliance
with the initial requirement if they provided sexual
harassment training and education to employees after January
1, 2003.
2)Provides that an employer's compliance with the training
requirement does not in and of itself result in the liability
of any employer to any present or former employee or applicant
in any action alleging sexual harassment. Conversely, an
employer's compliance does not insulate the employer from
liability for sexual harassment of any current or former
employee or applicant.
3)Provides that the Fair Employment and Housing Commission shall
issue an order requiring compliance if an employer violates
the foregoing requirements.
EXISTING LAW:
1)Makes certain specified employment practices unlawful,
including the sexual harassment of an employee directly by the
employer or a supervisor or agent of the employer, or by other
employees with the employer's knowledge, and provides for
administrative enforcement and a private right of action.
(Government Code section 12940(j). Further statutory
references are to this code unless otherwise indicated.)
2)Requires all employers, labor organizations and others to take
all reasonable steps necessary to prevent discrimination and
harassment from occurring. (Section 12940(k).)
3)Requires every employer to act to ensure a workplace free of
sexual harassment by implementing certain minimum
requirements, including posting sexual harassment information
posters at the workplace and obtaining and making available an
information sheet on sexual harassment. (Section 12950.)
FISCAL EFFECT : As currently in print, this bill is keyed
fiscal.
COMMENTS : According to the author, "sexual harassment in the
workplace remains a major problem in California. Even with
current laws to prevent sexual harassment, during the 2002-03
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fiscal year, 4,231 sexual harassment cases were filed with the
Department of Fair Employment and Housing - totaling 22% of all
cases filed at DFEH. Sexual harassment negatively impacts both
businesses and employees. Harassment costs the average Fortune
500 company $6.7 million per year in indirect costs alone. The
state of Connecticut has taken a pro-active approach in reducing
sexual harassment. The state requires employers to provide
training and education to all supervisory employees and post
information about sexual harassment and the remedies available
to victims of sexual harassment. According to the Hartford
Business Journal on July 23, 2001, 'Most legally sophisticated
companies provide such training to all supervisory and
non-supervisory employees. That's the smart thing for small and
large employers to do to minimize their legal exposure to
[sexual harassment] claims.'"
This Bill Affects Only Large Employers Who Regularly Employ 50
Or More Employees, And Governmental Employers . By its terms, AB
1825 applies only to an employer who regularly employs 50 or
more persons or regularly receives the services of 50 or more
persons providing services pursuant to a contract. The bill
also applies to the state, and any political or civil
subdivision of the state, and cities. According to the author,
the most recent US Census reports that there are 4208
private-sector employers in California with more than 100
employees. These businesses employ a total of 686,204
employees. There are 6273 firms that have between 20 to 99
employees, some of whom would also be covered by the bill. The
total number of employers, supervisors and other employees who
may be affected by the bill is unknown.
Only Supervisors Are Required To Receive The Prescribed
Training . Although many employers covered by this bill already
provide sexual harassment training to all employees, as
discussed below, only supervisory employees are within the scope
of this bill. The limitation of the bill to supervisory
employees should not be legally problematic because the
distinction between supervisory and non-supervisory employees
already exists in the context of sexual harassment law. (See
State Dept. of Health Services v. Superior Court (McGinnis), 31
Cal. 4th 1026 (2003)(employers strictly liable for harassment
committed by supervisors, but not other employees).)
Covered Employers Would Be Given One Year To Provide The
Required Training . The bill expressly states that the required
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training need only be conducted within one year of the effective
date of the bill for employees who hold supervisory positions as
of July 1, 2005. For employees subsequently appointed to
supervisory positions, the training need only be within the
first six months of their appointment.
Many Of The Employers Covered By This Bill Already Provide
Mandatory Sexual Harassment Training For All Employees Because
It Is Prudent To Do So Under Current Law. Under current state
and federal law, employers may avoid or limit liability for
harassment in many cases by taking reasonable steps to prevent
and correct it. (State Dept. of Health Services v. Superior
Court (McGinnis), 31 Cal. 4th 1026 (2003); Faragher v. City of
Boca Raton, 524 U.S. 775 (1998); Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742 (1998).) Among the factors courts
consider in this calculus is whether the employer conducted
training for its employees regarding the law and the employer's
policies with respect to the identification, prevention and
correction of harassment. (See, e.g., Kohler v. Inter-Tel
Techs, 244 F.3d 1167, 1181 (9th Cir. 2001).) Thus, supporters
argue, most prudent employers already conduct the training
required by this bill. Indeed, it is common for even smaller
employers to do so - and to train all employees, not just
supervisors. That is, for example, the Assembly's practice.
Because many employers already provide training that exceeds the
requirements of this bill, both in terms of the length,
frequency, coverage and type of employees who receive the
training, this bill is intended to provide only a floor, not a
ceiling. As proposed to be amended the bill gives direction to
employers regarding the content of the training and also makes
clear that employers are not to be discouraged or penalized for
providing more frequent or more elaborate training in order to
meet their existing obligations to take all steps necessary to
prevent and correct harassment and discrimination.
Prior Training Programs Are "Grandfathered." The bill expressly
provides that an employer need not re-train any employee who has
previously received appropriate training by the employer. As
proposed to be amended, this time period would reach back to
January 1, 2003.
Violation Of The Training Requirement Is Not An Independent
Ground For Liabililty. As proposed to be amended, the bill
further provides that a claim that the required training did not
reach a particular individual or individuals shall not in and of
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itself result in the liability of any employer to any present or
former employee or applicant in any action alleging sexual
harassment. Conversely, an employer's compliance with this
section does not insulate the employer from liability for sexual
harassment of any current or former employee or applicant.
Violation Of The Training Requirement Would Not Subject An
Employer To Liability For Money Damages. By its terms, the bill
does not allow an employee to recover money damages for a
violation of the training requirement, unlike other unlawful
practices under the FEHA. Rather, the bill is focused on
non-pecuniary solutions by authorizing the Fair Employment and
Housing Commission, or the courts if necessary, to award
equitable relief and penalties in an appropriate case in order
to vindicate the policies and purposes of the FEHA and to deter
violations, as well as attorneys' fees and costs in a civil
action in order to promote enforcement of the statute, as is the
norm in cases under the FEHA. This is the same approach taken
by the existing statutory obligation to post and distribute
information regarding sexual harassment under section 12950.
Existing Law Mandates Other Training Regarding Similar Workplace
Safety Laws . This bill is not unique in requiring that
specified employers provide training on matters potentially
impacting workplace safety. Existing law requires employee
training regarding workplace safety and health matters,
including injury and illness prevention. (Labor Code section
6401.7.) Other laws require special training regarding other
specific workplace hazards. (See, e.g., Labor Code section
6501.5 (asbestos-related training), Labor Code section 6398
(toxic materials).)
ARGUMENTS IN OPPOSITION: Prior to the proposed amendments, the
California Employment Law Council (CELC), wrote in opposition
that AB 1825 is unnecessary and overbroad, and will subject
employers to liability even where no sexual harassment has
occurred. CELC contends, "There is no reason to legislate in
this area, as employers are well aware of the risks and are
careful to develop anti-harassment policies and include those
policies in employee manuals and other materials. The bill also
is unnecessary because the already-mandated posting includes
information on unlawful discrimination and harassment." CELC
further argues that the bill is overbroad in its requirement of
training for all supervisors. "Even supervisors within the
legal and human resources areas would presumably be required to
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attend the training, even though these are the individuals
currently developing and implementing the anti-harassment
policies, writing the manuals, and providing the training. The
bill thus imposes a cost on business to 'train' many supervisors
who do not require training." CELC also believes there will
invariably be contentions that employers have failed to provide
training to all supervisors within the prescribed timeframes.
"The argument will be made that failure to provide the training
makes employers per se liable if harassment occurs, regardless
of the employer's action following the harassment." CELC also
states that there will be constant debates about whether a
particular person is a supervisor who must receive training.
The California Chamber of Commerce states that, while well
intended, AB 1825 "places too much emphasis on one-size-fits-all
training requirements and ignores the fact that quality of
training is even more important than quantity. The Chamber
argues, "Most employers of 50 to 100 employees still consider
themselves to be small and barely making it. These employers do
not typically have an in-house training staff and AB 1825 will
force these companies to hire outside consultants to do the new
mandated trainings. Policymakers need to understand that adding
even one new additional cost of doing business is difficult at a
time when the companies are already having to pay the highest
premiums in the country for workers' compensation coverage and
unemployment insurance."
The California Manufacturers and Technology Association (CMTA)
asserts, "Employers have provided required anti-harassment
training for supervisor personnel for many years and AB 1825
would further complicate the training requirement. For example,
due to the incremental implementation of numerous workplace
anti-harassment, discrimination, hostile work environment etc.,
etc., legislation over the years, supervisory personnel are
required to complete anti-harassment-discrimination training on
such areas as awareness and recognition, complaint management,
investigative and preventive intervention techniques that far
exceed two hours. CMTA is concerned that AB 1825 on its face
would require an additional two hours of training that is
specifically targeted at sexual harassment that would add more
cost and workplace disruption for little or no gain. We are
also concerned that this bill will set a precedent that each
time the legislature pass a bill that adds to the harassment
provision, employers will be obligated to repeat the training
all over again."
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REGISTERED SUPPORT / OPPOSITION :
Support
American Association of University Women
California Commission on the Status of Women
California Faculty Association
California National Organization for Women
California School Employees Association
Opposition
California Chamber of Commerce
California Employment Law Council
California Manufacturers & Technology Association
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334