Preventing Workplace Harassment, Discrimination, and Retaliation

Any documentation created or kept by the employer regarding complaints may have to be produced in a lawsuit. The likelihood of production is rare, however, because of the privacy interests of the people who file complaints and the people who are disciplined. In the event that a court orders the disclosure of other complainants’ identities, the public entity would have to make such disclosures, regardless of the existence of a log.

T RAINING E MPLOYEES TO P REVENT H ARASSMENT , D ISCRIMINATION , R ETALIATION AND A BUSIVE C ONDUCT

Section 11

All public employees, and particularly managers and supervisors, must treat their co-workers and subordinates professionally and respectfully and make decisions based on each employee’s individual merit. Employers should prohibit and discourage abusive conduct and conduct or decisions based on an employee’s protected status or on stereotypes related to a protected status. Training can further these goals by educating employees on how to identify workplace behaviors that constitute harassment, on the negative effects of harassment and abusive conduct, and on responding to and correcting harassing or abusive behavior.

A. S UPERVISORY AND N ONSUPERVISORY E MPLOYEE T RAINING

1. AB 1825 S UPERVISOR H ARASSMENT P REVENTION T RAINING Prior to 2019, California law required an employer with 50 or more employees, as well as all public sector employers (state, political or civil subdivisions of the state, special districts, counties, or cities) to provide harassment prevention training to its supervisors. 179 This is commonly referred to as “AB 1825” harassment training, based on the name of the legislative bill that enacted this training requirement. This training must include training and education regarding harassment based on gender identity, gender expression, and sexual orientation, presented by trainers or educators with knowledge and expertise in those areas. 180 The training must also include a component on “prevention of abusive conduct.” 181 Abusive conduct is defined as malicious conduct from an employer or employee, unrelated to an employer’s legitimate business interests, that a reasonable person would find hostile or offensive. 182 Statutorily listed examples of abusive conduct include: repeated verbal abuse, derogatory remarks, insults, epithets, verbal or physical conduct that reasonably appears threatening, intimidating, or humiliating, or sabotage of another’s work performance. 183 Supervisors must receive at least two hours of training every two years. New supervisors must receive training within six months of being hired or promoted and then at least every two years thereafter. Employers must maintain training materials and documentation tracking attendance and compliance for a period of at least two years. 184

Preventing Workplace Harassment, Discrimination, and Retaliation ©2019 (s) Liebert Cassidy Whitmore 47