Required by law or not, make harassment training mandatory

Most U.S. employers recognize the need to provide their managers and line workers with at least some training in basic employment law topics. Perhaps the most common kind of training teaches employees how to prevent, spot and report sexual harassment.

Some states have made workplace harassment training mandatory in order to establish an affirmative defense against possible harassment claims. In 2004, California joined Connecticut and Maine in requiring employers to train supervisory employees on sexual harassment every two years.

Although California, Connecticut and Maine are the only states with laws requiring workplace harassment training for supervisors, employers in other states have followed their lead in an effort to reduce liability for ill-informed behavior of employees, decrease the cost of litigating complaints of harassment and create a more hospitable work environment.

Federal sexual harassment law

Under federal law, the so-called Faragher/Ellerth defense states that when no tangible employment action is taken, an employer can raise an affirmative defense to liability by proving two 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.”

Since the emergence of the Faragher/Ellerth defense, federal and state court decisions have continued to conclude that workplace harassment training is a vital component in establishing an affirmative defense in harassment litigation and reducing punitive damages in litigation.

To assert the Faragher/Ellerth defense, an employer must not only train a company’s supervisors regarding harassment but ought to show an express anti-retaliation provision and the availability of several complaint channels for reporting the harassing conduct.

The Faragher/Ellerth defense is not and should not be the exclusive source in an employer’s attempt to lessen claims of discrimination, as it pertains mainly to allegations of sexual harassment.

What kind of training?

California’s sexual harassment training law (Assembly Bill 1825) serves as an example of a comprehensive and effective workplace discrimination training program that can shield employers from discrimination claims.

The bill goes beyond the basic requirements set by other states for harassment training by significantly monitoring the quality, subject matter and method of communicating the training material. The bill applies only to organizations that consistently employ 50 or more employees or “receive the services” of 50 or more people.

The law requires employers to:

• Provide two hours of harassment training to each supervisory employee every two years.
• Train newly hired or promoted supervisors no later than six months after they start their jobs.
• Include training on federal and state laws on sexual harassment, remedies for victims of sexual harassment and examples of how supervisors can prevent claims of harassment and discrimination.

The implementation of employment law training has evolved from a traditional classroom experience to live, online training. Often known as webinars, live, online training features an active facilitator who presents the training material via a web interface. That’s a more efficient method, as it teaches the same principles as face-to-face live instruction would, but at a much lower cost.

In addition, live, online training allows employees to absorb and engage with the material more intimately, especially compared to self-study Internet-based learning. Live, online training maintains employees’ attention. They’re engaged with a real person and can ask questions as they receive the information.

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Christopher Moore, a law clerk at Genova, Burns & Vernoia, assisted in the preparation of this article.

Training to prevent other kinds of harassment