Is a Supervisor or Manager Liable For Discrimination or Harassment?

Are Training or Employment Practices Taken Into Account For Discrimination and Harassment?

The California FEHA law AB 1825 requires all supervisors in a company larger than 50 employees must undertake sexual harassment training. Additionally, if the company regularly has 50 employees or more (including temporary and part-time employees), then their supervisors must do at least 2 hours of sexual harassment training every 2 years. Supervisors must complete this training within six months of their promotion.

The training must cover the following topics:

• The obligation that all supervisors have to report harassment, discrimination, or retaliation complaints to the HR manager or the designated company agent.
• That all supervisors must assist in reviewing and investigating the complaint as well as assisting with remedial measures.
• The definition of abusive conduct and how it effects employees. There are no minimum requirements as long as the coverage of abusive conduct is covered in a meaningful way.

Employers are legally required to retain their training documentation for at least two years. They must document the training date, sign-in sheet, which supervisors were trained, a copy of the training materials, the name of the training provider, and certificates of completion. If the course was a webinar or another form of e-learning, then the employers must retain similar information, including written questions and guidance that came up during the training.

These records will help an employer prove that they gave their supervisors the necessary training if they face a lawsuit. Even though companies smaller than 50 employees are not legally required to give their supervisors this training, they should consider doing so.

What Policies and Procedures Do Employers Need to Have In Place?

Employers need to have clear policies and procedures for preventing discrimination and harassment and for dealing with discrimination and harassment claims. FEHA regulations mean that all employers must have a written anti-discrimination, retaliation, and harassment policy. This policy must state the complaint process for these claims and how these claims are investigated. An employer cannot just distribute the DFEH-185 sexual harassment brochure; the policy must be:

1. In writing
   
   
2. List what the protected categories are under FEHA
   
   
3. State that all employees and third parties are legally prohibited from engaging in illegal behavior or conduct. This includes supervisors, co-workers, managers, and even clients.
   
   
4. Explain the complaints process, including:
   1. That the complaint is confidential
   2. That the complaint will receive a timely response
   3. That the complaint will be investigated by an impartial and qualified person
   4. That there will be documentation of the process and the employee can track the progress if they wish
   5. That appropriate solutions will be supplied
   6. That the issue will be closed in a timely manner
      
      
5. Provide a method of complaining that allows an employee to notify someone other than their immediate supervisor, like:
   1. An anonymous employee hotline
   2. Direct written or oral communication with a company representative
   3. An ombudsperson
      
      
6. Notify employees that they can contact the EEOC to lodge complaints if they need to.
   
   
7. Tells supervisors that they must immediately report misconduct complaints to the designated company representative. This allows the company to try to investigate and resolve the complaint internally.
   
   
8. Assures employees that the investigation will be fair and give all parties due process and examine the evidence before reaching a conclusion.
   
   
9. Informs employees that while the employer will try to keep matters confidential, the course of an investigation may affect confidentiality.
   
   
10. Indicate that if the investigation uncovers misconduct, that the employer will take appropriate action.
    
    
11. Inform employees of their right to not be retaliated against because they lodged a complaint or assisted a workplace investigation.

The employer must ensure all employees are given a copy of the policy in a way that lets them know that all employees have seen and understood the policy. This can be done through hard copy or email with an acknowledgement form the employee must sign and return or on the company intranet allowing the employer to track which employees have not read the policy. Alternatively, the employer may make the policy a part of orientation or training.

If the workforce at a particular premises or facility has more than 10% of employees that speak another language as their first language, then the policy must be translated into that language. If there are multiple languages that are spoken as first languages for 10% or more of the workforce, then the policy must be translated into all of those languages.

The purpose of these laws and regulations is to ensure that all employees are given a safe work environment. By training supervisors to know their legal responsibilities towards employees and know what to do if they witness harassment or discrimination or receive a complaint, then both employees and employers are safeguarded. The materials discussed in this article: employment policies, training proof, and documentation of complaint investigations will be discovered in legal procedures. They can either act as evidence that the employer was following the law or not. If an employer is found to not have complied with legal requirements, then they will be more liable for the harassment, discrimination, or retaliation.

These materials will also determine the supervisor’s understanding of harassment and discrimination. By retaining all the training materials, an employer can see how a supervisor answered questions that posed a hypothetical. It will show how the supervisor is likely to respond to complaints and if they understand what types of conduct fall under the terms of discrimination and harassment. These materials will show either that the supervisor was not trained properly by the employer or that they understood that harassment or discrimination occurred and failed to act appropriately as they were trained to do.

If an employer does not provide appropriate anti-discrimination and harassment training to its managers and supervisors, and if they do not follow through in the right way, then the supervisor is not individually liable. If the employer did take the correct steps and it can be proved that the supervisor still engaged in harassment, then the supervisor is considered individually liable.