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Laws Requiring Discrimination and Harassment Training

 

U.S. Supreme Court Rules on Vicarious Liability of Employers in Two 1998 Sexual Harassment Cases

The U.S. Supreme Court ruled on June 26, 1998, in two cases, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. Employers now have more reason to be diligent in their efforts to prevent sex harassment in the workplace. The Court clarified employers' liability under Title VII for the actions of their supervisors after the U.S. Circuit Courts had reached a variety of conclusions.

Employers Liable for Supervisors' Actions. The Supreme Court held in both cases that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. The liability of the employer is automatic when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. However, when no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages.

Affirmative Defense Available to Employers. The affirmative defense available to employers comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action.

The Supreme Court also held in both cases that while proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may be addressed when litigating the first element of the defense.

The Court also stated in both cases that while an employee's failure to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use an employer's complaint procedure, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense.

Antiharassment Policy With Complaint Procedure, Communication and Training Necessary. As a result of these cases, employers must have a well written antiharassment policy with an appropriate complaint procedure, must communicate the policy and complaint procedures to its employees regularly, and must have a regular training program for supervisors and employees.

Prior to these decisions of the Supreme Court it was always recommended that employers create these types of preventive programs. Now the U.S. Supreme Court has made it necessary to have such programs in place.

AB 1825 (California Code Section 12950.1)

Required California Supervisor Training Regarding Sexual Harassment

12950.1. (a) By January 1, 2006, an employer having 50 or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of their assumption of a supervisory position. Any employer who has provided this training and education to a supervisory employee after January 1, 2003, is not required to provide training and education by the January 1, 2006, deadline. After January 1, 2006, each employer covered by this section shall provide sexual harassment training and education to each supervisory employee once every two years. The training and education required by this section shall include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment. The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

(b) The state shall incorporate the training required by subdivision (a) into the 80 hours of training provided to all new supervisory employees pursuant to subdivision (b) of Section 19995.4 of the Government Code, using existing resources.

(c) For purposes of this section only, ‘‘employer’’ means any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities.

(d) Notwithstanding subdivisions (j) and (k) of Section 12940, a claim that the training and education required by this section did not reach a particular individual or individuals shall 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 with this section does not insulate the employer from liability for sexual harassment of any current or former employee or applicant.

(e) If an employer violates the requirements of this section, the commission shall issue an order requiring the employer to comply with these requirements.

(f) The training and education required by this section is intended to establish a minimum threshold and 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.

Required Training of Connecticut Supervisors Regarding Sexual Harassment

Sec. 46a-54. (Formerly Sec. 31-125). Commission powers. The commission shall have the following powers and duties:


(15) (A) To require an employer having three or more employees to post in a prominent and accessible location information concerning the illegality of sexual harassment and remedies available to victims of sexual harassment; and (B) to require an employer having fifty or more employees to provide two hours of training and education to all supervisory employees within one year of October 1, 1992, and to all new supervisory employees within six months of their assumption of a supervisory position, provided any employer who has provided such training and education to any such employees after October 1, 1991, shall not be required to provide such training and education a second time. Such training and education shall include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment. As used in this subdivision, "sexual harassment" shall have the same meaning as set forth in subdivision (8) of subsection (a) of section 46a-60, and "employer" shall include the General Assembly;

Sec. 46a-54-204. Posting and requirements for employers having fifty or more employees training

(a) An employer having fifty (50) or more employees shall comply with the posting requirements set forth in sections 46a-54-200 through 46a-54-207, inclusive.

(b) An employer having fifty (50) or more employees must also provide two hours of training and education to all supervisory employees of employees in the State of Connecticut no later than October 1, 1993 and to all new supervisory employees of employees in the State of Connecticut within six months of their assumption of a supervisory position. Nothing in these regulations shall prohibit an employer from providing more than two hours of training and education.

(c) Such training and education shall be conducted in a classroom-like setting, using clear and understandable language and in a format that allows participants to ask questions and receive answers. Audio, video and other teaching aides may be utilized to increase comprehension or to otherwise enhance the training process.

(1) The content of the training shall include the following:

A) Describing all federal and state statutory provisions prohibiting sexual harassment in the work place with which the employer is required to comply, including, but not limited to, the Connecticut discriminatory employment practices statute (section 46a-60 of the Connecticut General Statutes) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. section 2000e, and following sections);

(B) Defining sexual harassment as explicitly set forth in subdivision (8) of subsection (a) of section 46a-60 of the Connecticut General Statutes and as distinguished from other forms of illegal harassment prohibited by subsection (a) of section 46a- 60 of the Connecticut General Statutes and section 3 of Public Act 91-58;

(C) Discussing the types of conduct that may constitute sexual harassment under the law, including the fact that the harasser or the victim of harassment may be either a man or a woman and that harassment can occur involving persons of the same or opposite sex;

(D) Describing the remedies available in sexual harassment cases, including, but not limited to, cease and desist orders; hiring, promotion or reinstatement; compensatory damages and back pay;

(E) Advising employees that individuals who commit acts of sexual harassment may be subject to both civil and criminal penalties; and

(F) Discussing strategies to prevent sexual harassment in the work place.

(2) While not exclusive, the training may also include, but is not limited to, the following elements:

(A) Informing training participants that all complaints of sexual harassment must be taken seriously, and that once a complaint is made, supervisory employees should report it immediately to officials designated by the employer, and that the contents of the complaint are personal and confidential and are not to be disclosed except to those persons with a need to know;

(B) Conducting experiential exercises such as role playing, coed group discussions and behavior modeling to facilitate understanding of what constitutes sexual harassment and how to prevent it;

(C) Teachingtheimportanceofinterpersonalskillssuchaslisteningandbringing participants to understand what a person who is sexually harassed may be experiencing;

(D) Advising employees of the importance of preventive strategies to avoid the negative effects sexual harassment has upon both the victim and the overall productivity of the work place due to interpersonal conflicts, poor performance, absentee- ism, turnover and grievances;

(E) Explaining the benefits of learning about and eliminating sexual harassment, which include a more positive work environment with greater productivity and potentially lower exposure to liability, in that employers—and supervisors person- ally—have been held liable when it is shown that they knew or should have known of the harassment;

(F) Explaining the employers’ policy against sexual harassment, including a description of the procedures available for reporting instances of sexual harassment and the types of disciplinary actions which can and will be taken against persons who have been found to have engaged in sexual harassment; and

(G) Discussing the perceptual and communication differences among all persons and, in this context, the concepts of ‘‘reasonable woman’’ and ‘‘reasonable man’’ developed in federal sexual harassment cases.

(d) While not required by these regulations, the Commission encourages an employer having fifty (50) or more employees to provide an update of legal interpretations and related developments concerning sexual harassment to supervisory personnel once every three (3) years.

(Effective February 24, 1993)

Sec. 46a-54-205. Effect of prior training

An employer is not required to train supervisory personnel who have received training after October 1, 1991 that:

(1) substantially complies with the required content of the training set forth in subsection (c) (1) of section 46a-54-204; and

(2) was provided in a classroom setting and lasted at least two hours. (Effective February 24, 1993)

Sec. 46a-54-206. Trainers

An employer required to provide training by these regulations may utilize individuals employed by the employer or other persons who agree to provide the required training, with or without reimbursement.

(Effective February 24, 1993)

Sec. 46a-54-207. Recordkeeping

(a) The Commission encourages each employer required to conduct training pursuant to Public Act 92-85 to maintain records concerning all training provided.

(b) Such records shall include, but are not limited to:

(1) documents sufficient to show the content of the training given, such as the curriculum;

(2) the names, addresses and qualifications of the personnel conducting the training;

(3) the names and titles of the personnel trained and the date or dates that each individual was trained;

(c) The Commission encourages employers to maintain any such records for a minimum of one year, of if a discriminatory practice complaint is filed involving personnel trained, until such time as such complaint is finally resolved.
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