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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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Since 2006, California law has required all employers of 50 or more who conduct business in the state to provide at least two hours of interactive training and education regarding sexual harassment to all supervisory employees. That training is required at least once every two years and must be conducted by qualified trainers, defined by law and including attorneys who meet specific criteria. New supervisors and new hires in supervisory positions have to be trained within six months of assuming a supervisory position. The content of that training is specified by law.
Beginning on Jan. 1, 2015, that mandatory anti-harassment training must contain an "anti-bullying" component, as required by Assembly Bill (AB 2053). Employers now will have to include training and education on the prevention of "abusive conduct." Abusive conduct is defined as malicious conduct that a reasonable person would find hostile or offensive and that is unrelated to an employer's legitimate business interests. The new law provides examples of abusive conduct, such as verbal abuse; derogatory remarks; insults; threatening, intimidating or humiliating conduct; or the gratuitous sabotage or undermining of a person's work performance. A single act, however, shall not constitute abusive conduct, unless it is especially severe or egregious. Employers who do not comply with the new law risk being ordered to do so. Moreover, failure to train may be used as evidence against employers should a claim arise.
This new law is likely to invite confusion, and employers may see an increase in claims. Despite the new anti-bullying language, the act of bullying, while always inappropriate and unprofessional, may not be unlawful in and of itself—even in California. Bullying must be based on a protected characteristic to give rise to a claim. A good trainer can effectively train and sensitize the audience, while explaining the nuances of the law.
Employers outside of California should be aware that the law is expansive. It is not limited to certain types of businesses. It counts contractors, as well as employees, and reaches back in time to determine if an employer falls within the 50-worker requirement. Further, the law does not require that at least 50 employees work at the same location, that workers all work in California or that the workers reside in California. For those reasons, employers of all types and sizes may want to train their workforces and possibly prevent potential claims.
What This Means for Employers
Employers that have employed 50 or more workers within the past year may want to seek legal counsel to determine if California's mandatory anti-harassment training law applies to them. If it does, be sure the content of your anti-harassment trainings complies with the requirements of California law, including the new bullying prevention component. Check your calendar to determine if it's time to schedule another training, especially if your last training was more than two years ago. Scheduling trainings with a trainer who qualifies under the law is essential, as there is an art to conducting effective sensitivity trainings without inadvertently inviting claims.
Duane Morris is a full-service law firm with more than 700 attorneys in the United States and internationally. Republished with permission. © 2014 Duane Morris. All rights reserved.
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