Why should we provide our employees training on this topic?
All employers must provide their employees harassment prevention training for the following reasons:
Employees need to learn about the nuances of what is and what is not harassment. Your employees need accurate and practical information to identify, prevent, and report sexual harassment and other forms of workplace harassment.
Save money. You will save money by reducing the number of harassment claims and the costs of investigating, litigating, and paying verdicts and settlements to resolve those claims.
Law requires training. Several jurisdictions, such as California, Connecticut, and Maine, require some or all employers to provide workplace harassment training to their employers. But even in states where there is not a specific state law requiring the training, court decisions and federal guidelines make it essential that all employers provide their employees harassment prevention training. See, e.g. Faragher v. City of Boca Raton (U.S. Supreme Court), Gaines v. Bellino (New Jersey Supreme Court). Organizations that provide such training may:
Avoid punitive damages in employee lawsuits
Assert a defense to harassment lawsuits
Follow federal guidelines established by the EEOC
Follow state laws and guidelines
It may also be helpful to read an article entitled Harassment and Discrimination Training: What the Law Requires (pdf format) that one of the Co-Presidents of Global Compliance's Brightline Learning Division presented to labor and employment attorneys at the Chicago Bar Association. The article examines:
Recent court decisions and federal and state guidelines that have made harassment and discrimination prevention training essential
The return on investment of harassment and discrimination prevention training
Legal issues relating to the content and delivery of harassment and discrimination prevention training
Read an article on the requirements of California AB 1825 (pdf), which requires sexual harassment training for supervisors every two years. The California Fair Employment and Housing Commission (FEHC) approved new regulations regarding California Law AB 1825 on November 14, 2006. To read an analysis of the regulations, click here.
Should we train only supervisors or all employees?
Court decisions and EEOC guidelines indicate that employers should provide harassment prevention training to all employees, not just to supervisors shortly after they are hired.1 Employers should train employees as soon as they are hired so that a new employee is not harassed, and does not harass another employee, before receiving harassment prevention training.
Employers who fail to provide harassment prevention training may be unable to raise an affirmative defense to a harassment lawsuit. For example, in Harrison v. Eddy Potash, Inc,2 the employer argued that it should be able to assert an affirmative defense to an employee's sexual harassment claims, noting that it had sent its supervisors a copy of the company's harassment policy and instructed each supervisor to post the policy, hold meetings on the policy with their respective employees, and read the policy to them. The Tenth Circuit Court of Appeals, however, upheld a jury's decision that the employer had not taken reasonable steps to prevent harassment in the workplace. The court noted that the employer had never provided employees actual training on sexual harassment and that the employer had not informed the harassment victim of its policy against harassment when she was hired.
Even in cases where the non-supervisory victim of harassment is aware of the employer's harassment policy and complaint procedure, employers may be found liable if they have not trained all employees. For example, in Yaccarino v. U.S. Postmaster General,3 the Equal Employment Opportunity Commission (EEOC) reviewed an administrative law judge's decision denying the Post Office's affirmative defense to liability from a manager's sexual harassment. Although the Post Office had a sexual harassment policy and complaint procedure that the victim knew about, the EEOC nevertheless held that the Post Office had failed to establish an affirmative defense because it could show no evidence "that training was provided by the agency to supervisors and employees to prevent harassment." Similarly, in Gaines v. Bellino,4 the New Jersey Supreme Court indicated that in assessing the effectiveness of an employer's harassment prevention efforts, one factor to consider is whether a harassment prevention training program had been made available to all employees.
How often should we provide harassment prevention training?
Harassment and discrimination prevention training should not be simply a one-time event. California law AB 1825 requires that harassment training be provided to supervisors every two years. Nationwide, EEOC guidelines indicate that employees should receive periodic training on the topic. Courts' interpretations of the laws continually change, and employees need to be kept up-to-date and refreshed on this topic. Periodic training can help employers raise an affirmative defense and avoid punitive damages. For example, in Fuller v. Caterpillar, Inc.,5 the court held that the employer could avoid liability and punitive damages in a harassment case because it had made good faith efforts to prevent harassment. The court noted that during a two-year period, the company had twice provided harassment prevention training.
When it settles harassment lawsuits, the EEOC typically requires the employer to agree to provide its employees yearly harassment prevention training. Employers are wise to follow the EEOC's lead and provide each employee harassment prevention training once a year.
EEOC, Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, No. 915.002, June 18, 1999 (EEOC guidelines indicate that, if feasible, employers periodically "should provide training to all employees to ensure they understand their rights and responsibilities" relating to workplace harassment.)
248 F.3d 1014 (10th. Cir. 2001)
EEOC 170-AO-8812X (Sep. 6, 2001). Employment discrimination complaints in the federal government are handled by the agency involved. If the individual who filed the complaint does not agree with the agency's decision, he or she can file an appeal with the EEOC.
