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Sexual Harassment Training

What you need to know to stay out of trouble.

October 16, 2008
by Sukanya Mitra

Do you conduct sexual harassment training courses at your company? Today, this is mandatory nationwide by both federal and state laws. Are there any implications if you don't follow your state's regulations? This was just one of the topics of discussion at the recent Workforce Management Webcast on understanding harassment training. Shanti Atkins, Esq., president and CEO of ELT, an ethics and compliance training firm, lead the session. Atkins was joined by colleague Reid Bowman, Esq., general counsel for ELT, who has more than 25 years of HR and employment law experience.

Federal Law

The results of a quick poll on how many Webcast attendees were conducting extensive harassment training sessions because they were required to do so by federal law was not surprising. Of the more than 1,000 attendees, more than half (54.7%) were indeed conducting their training because of the legal mandates. Bowman said that he was somewhat surprised to see that number dwindling in recent years.

Bringing up 1998's case of Faragher v. City of Boca Raton, Bowman said that with this case, "The Supreme Court made it very clear that employers are strictly liable if supervisors conduct sexual harassments that result in tangible job detriment or tangible employment actions." If such is not the case, then the Court stated that employers would be given an "affirmative defense from supervisory sexual harassment," provided the company proved that they tried to prevent harassment and also that the complainant did not lodge a sexual harassment complaint in a timely fashion. This basically means that companies need to have harassment training sessions in place for all individuals and they must also train employees on how to complain. Of note is that this Supreme Court ruling was not limited to sexual harassment, but also encompassed race and other forms of discrimination.

What if your company decided to throw caution to the wind and cross the bridge when and if you ever got sued? You could take the risk, but here's what's at stake if you don't train your employees:

  • In 2005, plaintiff was awarded $1 million in compensatory damages and $5 million in punitive damages for not conducting harassment training (Bains v. ARCO Prods. Co.).
  • In 2003, plaintiff was awarded punitive damages because of failure to train (Godinet v. Management and Training Corp.).
  • In 2001, plaintiff was awarded $1 million in punitive damages because manager lacked training. The company had a policy, but it was judged that a policy alone was not enough (Swinton v. Potomac Corp.).

But as Bowman pointed out, the laws aren't always stacked against the employer. In the 2007 case of Dominic v. DeVilbiss Air Power Co., the Eighth Circuit Court of Appeals held that punitive damages was not appropriate because the employer required supervisors to go through harassment training, which constituted good faith.

State Law

Complying with state law can often be a challenge. Bowman noted that state laws have been in effect since the early '90s, with Maine being a pioneer, followed closely by Connecticut. In 1991, Maine required sexual harassment training for employers with more than 15 employees and to conduct sexual harassment training for all new employees within the first year of employment. Connecticut was a bit less rigorous with their employee count. In 1993, Connecticut required employers with more than 50 employees to provide two hours of sexual harassment training to only supervisory employees, within six month of the individual assuming the managerial position. Bowman noted that Connecticut also suggests that supervisors be re-trained every three years. These are statutory laws, so as Atkins pointed out, "you are breaking state law" if you don't conduct these training sessions in Maine and Connecticut.

Statutory Law vs. Mandatory Guideline

While Connecticut and Maine's law are statutory, the Faragher case is considered a federal guideline, which is "basically both the Supreme Court and the Equal Employment Opportunity Commission (EEOC) has told employers, ‘we expect you to train'," explained Atkins. "While you're not breaking the law by failing to provide the training, ‘we consider you to not following a clear guideline'," she added. And this judgment is coming from both the federal court as well as the highest agency overseeing employment law and you will be severely punished for not following these guidelines.

Many find statutory law and mandatory guidelines confusing. There are shades of gray here, so you're not alone. What is the difference? In layman's terms, "you are not breaking a state law in the mandatory guideline or a federal statute, but you are certainly exposing your organization to enormous risk," said Atkins.

Why California Law Is Different

In 2004, California passed its sexual harassment training law (aka AB 1825). It is important for you to know about this law even if you're not doing all your business in California, because the state requires employers who do some business in California and have more than 50 employees to provide two hours of high quality "interactive" harassment training to all supervisors. "Not all 50 employees need to be in California to meet that threshold," warned Atkins.

Example: Suppose your company has 49 employees in New York and one supervisor in California, this law would require you to train that California supervisor. The law requires training for only those supervisors who are "physically" in the state of California.

While the law in California is similar to the one in Connecticut, the main difference is that California requires that you re-train your supervisors over and over again. In Connecticut, it is only suggested that you do so.

Besides passing this law, California also passed regulations on how this training needs to be conducted. Here are the guidelines:

  • Training must recur every two years. As Atkins pointed out, most organizations follow an odd-year calendar, "making 2009 a ‘re-train' year for most organizations."
  • New hires and promoted supervisors must be trained within the first six months of employment.

According to these regulations, the following are considered qualified to do the training:

  • Attorneys who have been admitted to the bar and have had two or more years of employment law practice;
  • HR professionals with two or more years of practical experience in:
    • designing training; and/or

    • responding to harassment complaints; and/or

    • conducting investigations; and/or

    • advising employers about harassment prevention;

  • Professors and instructors who have a graduate degree or teaching credentials from the State of California. In addition they must either have 20 instruction hours or two or more years of employment law teaching experience in a school, college or university.

Atkins did note that those professionals who do not meet the above criteria can "team teach with a trainer in a classroom or Webinar, provided the trainer supervises these individuals and the trainer is available throughout the training to answer questions from the attendees."

Conclusion

It is interesting to note that more and more EEOC consent decrees that are based on federal standards, "have been borrowing from a lot of the requirements in the California law, when EEOC settles with a company that is found guilty of harassment," Atkins said. The California law is being used as a benchmark throughout the country and as Bowman noted "California is setting the standard for effective compliance training programs for the rest of the country."

Both panelists agreed that it is best to follow California's lead, no matter where you are based, and conduct training every two years and make sure that the training is not repetitive but add new training components and cases, so that it is more productive for the new employee as well as the newly-promoted supervisor. As far as differences in training programs for regular employees versus supervisors, Bowman said that for the most part, the programs will be the same. However, he emphasized that for managers, you need to make sure they know how to, "handle complaints when they come in and they need to know that things need to be done in a prompt and effective way; and managers need to be really well trained on how not to retaliate against employees who have raised complaints or are part of a group investigation."

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Sukanya Mitra is Managing Editor of the AICPA Insider™ e-newsletter group.