Are elected officials, board members and appointed officials required to take mandatory sexual harassment prevention training?

Q:     Are elected officials, board members and appointed officials required to take mandatory sexual harassment prevention training?

A:     Maybe.   This is an open question.  Mandatory sexual harassment training is required for all supervisors that are employed either with a private company that has over 50 employees or for public agencies.  This training is often referred to as AB 1825 training.  Specifically, the statute states:

. . .  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.

Based on the plain reading of the statute, elected officials, board members and appointed officials are at least arguably supervisors and can direct other employment decisions.  This would seem to indicate that they are required to take the training.  That said, often times, these individuals, particularly board members, are not considered employees.  AB 1825 applies to supervisory employees.  This would seem to suggest that at least some of these individuals are not required to take the training.

The Department of Fair Employment and Housing (DFEH) has weighed in on this issue.  As you may recall, Bob Filner (former mayor of San Diego) got into trouble for sexual harassment.  In the wake of that scandal the DFEH required all elected officials to attend AB 1825 training.  This prompted the DFEH director to state, “[t]his agreement serves as a model for other local government agencies to fully comply with the sexual harassment training required of all supervisors, including elected and appointed official under the Fair Employment and Housing Act.”

Based on the director’s comment, the DFEH has taken the position that elected officials, board members and appointed officials are required to attend AB 1825 training.  Unfortunately, the law itself is less clear.  Ultimately, there is no harm in requiring the training (except for the potential gripes about a 2 hour training requirement.)

Notwithstanding the above, the real reason an organization should require training (besides hopefully preventing sexual harassment in the first instance) is to provide the argument that the organization took all reasonable steps to prevent harassment in the defense of a harassment suit.  This argument is helpful even if an organization wasn’t technically required to comply with AB 1825.

For those elected officials, board members and appointed officials that have other employment, in addition to their public service, there may be a way to avoid taking the training in both capacities.  The applicable regulations provide the following to prevent duplication:

A supervisor who has received training in compliance with this section within the prior two years either from a current, a prior, an alternate or a joint employer need only be given, be required to read and to acknowledge receipt of, the employer’s anti-harassment policy within six months of assuming the supervisor’s new supervisory position or within six months of the employer’s eligibility. That supervisor shall otherwise be put on a two year tracking schedule based on the supervisor’s last training. The burden of establishing that the prior training was legally compliant with this section shall be on the current employer.

In general, it is always better to be safe than sorry, and training is fairly easy to complete.  There are a number of attorneys (including Baker Manock & Jensen), human resource companies and on-line services that provide the training.

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