2018 New Years’ Resolution: Examine Your Sexual Harassment Training
In a 2005 episode of NBC's workplace comedy The Office, the show’s fictional paper supply company, Dunder Mifflin, is required to hold sexual harassment training due to allegations of misconduct by the company’s CFO. Titled “Sexual Harassment,” the episode was reportedly based on the writer’s experience with workplace sexual harassment training. Effectively summing up her fellow employees’ views on the issue, receptionist, Pam Beezley, lamented: "[u]sually the day we talk about sexual harassment is the day that everyone harasses me as a joke." Preceded by a mature content warning, but mostly played for laughs when it debuted, the episode might have trouble making it on the air today (especially on NBC) given the current spotlight on sexual harassment due to recent reports of sexual misconduct by high-profile figures in business, media, sports, and politics, including, former FOX News host Bill O'Reilly, comic Lewis C.K., Hollywood movie mogul Harvey Weinstein, Academy Award winners Kevin Spacey, Casey Affleck and Dustin Hoffman, and NBC’s Matt Lauer, among many others. This environment of increased awareness has caused many employers to examine how they are addressing sexual harassment in the workplace. In doing so, some are recognizing the dangers of treating anti-harassment compliance, particularly with respect to training practices, as a “check the box” item, which reduces its effectiveness and ultimately puts employees and employers at risk. For the sake of all involved, taking a hard look at your anti-harassment training is now more advisable than ever.
Although the recent high-profile cases of sexual misconduct make for sensational news stories, how this issue directly affects employers often gets lost in the media chatter. Under current law, employers can be held vicariously liable (i.e. legally responsible) for the harassment of their employees by a supervisor, co-worker or even a vendor or client. Although the outcome of each case depends on the specific facts of such case, in certain circumstances, the employer might have an available "Faragher-Ellerth Defense" (named after two landmark U.S. Supreme Court cases) to defeat vicarious liability involving supervisors, provided no tangible employment action has been taken against the offended employee (e.g. termination, demotion, or reassignment (etc.)). Notably, effective training of the employer’s workforce is a key element of such a defense.
To establish this defense, the employer must demonstrate that: (1) it used “reasonable care” to prevent and correct any harassment; and (2) the employee “unreasonably” failed to take advantage of any prevention or corrective opportunities provided by the employer. As part of the analysis of the first prong of the defense, courts often look to whether the employer has adequately trained its employees on its anti-harassment policy and practices. Indeed, one federal court in the Eighth Circuit (of which Nebraska is a part) has specifically noted that the “gravamen” (i.e. the essence) of an effective anti-harassment policy includes training on such policy. As a result, failure to provide effective training could mean significant exposure for the employer, as it did for an International House of Pancakes restaurant in Wisconsin when an appeals court upheld a six-figure verdict against the restaurant due in part to the ineffectiveness of the training for employees and supervisors. Reportedly, the training program included employees watching videos on sexual harassment and reading and signing the restaurant’s anti-harassment policy, which the court of appeals stated was “ineffective” and described the protection purportedly offered by the policy and the training as “illusory”.
Taking a similar position, the Equal Employment Opportunity Commission (“EEOC”) recently weighed in with its own guidance highlighting the central place that anti-harassment training should occupy in an employer’s compliance efforts and providing an outline of effective training practices. The November 22, 2017 bulletin titled “Promising Practices for Preventing Harassment” identifies “five core principles that have generally proven effective in preventing and addressing harassment”: leadership, accountability, strong policies, accessible complaint procedures, and regular training. Notably, the bulletin places particular emphasis on effective harassment training, stating: “[l]eadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them”. The bulletin further notes that training “may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.”[i]
Most importantly, the EEOC noted that not all training is created equal, and the bulletin suggests that the most effective employee harassment training is “conducted by qualified, live, interactive trainers…” and is tailored to the specific workplace and workforce with examples of unacceptable conduct, identification and contact information for those in the organization responsible for addressing harassment, discussion of the employer’s complaint process (including what information may be requested during an investigation), and explanations of the range of possible consequences for misconduct. In other words, training curriculum should not be one-size-fits-all and might best be developed and presented in conjunction with trainers who can combine their subject matter expertise with their familiarity with your organization to clearly communicate these important concepts with your employees.
Although not legally binding, the EEOC’s guidance clearly signals its position on the importance of effective anti-harassment training and serves as a good guide for employers attempting to create and/or implement sound training practices to best serve their employees and to stay out of the EEOC’s crosshairs. Last year, the EEOC received approximately 13,000 charges alleging sex-based harassment and that number could be higher next year given the increased awareness of the issue and willingness of victims to come forward.
As the calendar turns to 2018, a renewed focus by employers on sexual harassment training practices seems prudent given all that transpired in 2017. In order to create and maintain a safe and productive workplace employers should examine their current compliance efforts and ensure that policies and practices are current, lawful, and regularly communicated to employees by qualified individuals as part of a training program specifically tailored to the particular workforce and work environment. The attorneys in Koley Jessen’s Employment, Labor and Benefits Practice Group regularly conduct live training sessions on a variety of subjects and have extensive experience with designing and presenting sexual harassment training. If you have any questions about your legal obligations with respect to sexual harassment in the workplace or if you would like to discuss any aspect of your compliance practices, please contact a member of Koley Jessen’s Employment, Labor and Benefits Practice Group.
[i] The bulletin is available at: https://www.eeoc.gov/eeoc/publications/promising-practices.cfm#_ftnref2.