Ravix Human Resources is often asked by new clients to conduct Harassment Training for their staff. As the engagement begins, we get details regarding the motivation to seek out training, especially when they are not legally required to do so under AB 1825*. Most companies initially indicate that they are growing and believe it will be beneficial to begin integrating a culture of valuing diversity and respectfulness among the employees in the workplace. Upon further review, we learn that a ‘situation’ occurred whereby someone filed a discrimination and/or harassment claim recently and the company was advised by their attorneys to immediately take appropriate steps to help mitigate similar claims in the future.
Although any employee can launch a discrimination claim, even if there is no foundation, there are inexpensive, preventative measures that companies can take to significantly reduce the risks of discrimination claims while creating a work environment that is respectful, productive and profitable. The following is a short list of actions companies can take to limit liability and discrimination claims:
Hold Respectful Workplace Training – The training should be a two hour, interactive training session for non-managers and managers. The manager meetings should be separate from the non-manager meetings as the message communicated in the management training sessions is much different than the non-manager meetings. Every participant should sign a sheet verifying that they attended the session since this is a company’s only proof that employees participated in the training.
Have an Anti-Harassment Policy in Place – The Anti-Harassment policy should contain language that prohibits employment discrimination on the following non-merit characteristics: sex, sexual harassment, retaliation, religion, genetic information, disability, national origin, pregnancy, race/color, age and equal pay/compensation. The Policy should also entail a procedure in which employees can report incidents and it should have at least two alternative methods of reporting incidents in the event their supervisor’s actions are causing the claim. It should also outline a process for a prompt and thorough investigation into incidents along with an assurance of a quick and appropriate corrective action and assurance that complainants and witnesses will not be retaliated against. It is equally important to ensure that employees follow the policy – not just sign off on it. It is the company’s responsibility to demonstrate proof that they have used multiple means of communicating the Policy on a regular basis. Another requirement is to ensure that employees sign a confirmation of receipt acknowledging that they read and understood the policy.
Management Advocating a Respectful Workplace – Management has a responsibility to a) ensure they are committed to and taking an active role in creating and maintaining a harassment free work environment, b) taking appropriate measures to be made aware of behaviors in the work environment that may be considered inappropriate (this includes hearing or being witness to stray remarks that may appear harmless), c) participate in Respectful Workplace training and d) ensure violators of the Policy are appropriately disciplined. Managers using a defense that they didn’t know that discrimination and/or harassment was occurring in the workplace will not be protected in the event a claim surfaces. According to the Courts, managers should have known. Managers should always take immediate corrective action if they witness and/or hear about an incident that occurred in the workplace as there is additional and increased personal liability if the manager fails to take appropriate actions to remedy a situation.
Required Employment Law Posters and Handouts – Employers are required to post the Sexual Harassment Poster issued by the Department of Fair Employment and Housing in a place that can be viewed and accessed by all employees (i.e. break room). Employers are also required to distribute the Sexual Harassment fact sheet/pamphlet which contains:
an explanation of what sexual harassment is,
the California and Federal Laws' definition of Sexual Harassment,
definition of what Personal Liability is,
instructions on how to stop sexual harassment in the workplace,
the definition of retaliation and highlighting that employees are protected against retaliation,
a summary of complaint procedures and steps to filing a complaint with the appropriate State agencies such as The Department of Fair Employment and Housing, the Equal Employment Opportunity Commission and the Fair Employment and Housing agency.
Ultimately, employers who provide prevention training, prepare, post and communicate thorough policies and take prompt corrective action to address complaints and inappropriate conduct effectively reduce the amount of initial claims and litigation costs associated with workplace harassment. Indeed, studies have shown that implementation of the aforementioned measures easily pays for itself when considering the frustrating, expensive and time consuming process of responding to claims and/or litigation. Employers that do not provide these preventative measures expose themselves to punitive damages, the potential loss of an affirmative defense, low morale and productivity and a negative reputation of creating and supporting a discriminating and harassing environment. It’s not worth it.
*AB 1825 – Effective 9/30/2004, AB 1825 was signed requiring all California employers with 50 employees or more to provide sexual harassment training to their supervisors every two years. Employers must include their full-time and part-time employees, and temporary service employees, as well as independent contractors. Since the law does not specify that the 50 employees must be within the state, the law applies to California employers with 50 total employees including those outside the state.