Sexual harassment prevention training is essential in minimizing an organization’s legal and reputational risks and creating a safe, respectful and inclusive workplace. According to HRAcuity’s 2019 Employee Experience survey, more than one-half of employees (56%) witness or experience sexual harassment at work.
Organizations should regularly provide all employees with up-to-date harassment prevention training. A complete and compliant training program should be one component of a comprehensive harassment prevention strategy that will both mitigate exposure to liability and create an organizational culture that is inclusive, respectful and intolerant of harassment.
Provide Training to Employees in all States and Roles
For the majority of organizations that operate in multiple states across the country, there is a complex web of state-specific requirements. Currently, the states that require sexual harassment training are: California, Connecticut, Delaware, Illinois, Maine and New York State, Chicago and New York City. Washington state and Washington, DC require sexual harassment training for certain types of employers.
Many states, including Colorado, Florida, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Ohio, Oklahoma, Rhode Island, Tennessee, Utah, Vermont and Wisconsin, “encourage” employers to provide anti-harassment training to employees, even though they don’t require it.
On the federal level, Equal Employment Opportunity Commission (EEOC) guidelines, which apply to employers in all states, say that employers periodically “should provide [harassment prevention] training to all employees to ensure they understand their rights and responsibilities.” Further, the EEOC’s 2016 report from the “Harassment in the Workplace” study noted that, “[t]raining should be conducted and reinforced on a regular basis for all employees.”
Whereas in the past, some training requirements were limited to supervisors, under current law, the states and localities that require all types of employers to provide training mandate that both supervisory and nonsupervisory employees be trained. Some jurisdictions go further. New York requires that training be provided to interns and certain independent contractors. Chicago requires any supervisor who manages a Chicago employee to complete two hours of harassment prevention training that meets the city’s requirements.
Separate from statutory training requirements, employers who provide training to all employees can receive important legal advantages if a harassment claim ends up in court. First, providing harassment prevention training can limit damages. In Kolstad v. American Dental Association, the Supreme Court held that an employer could avoid punitive damages in a harassment and discrimination case if the employer could show that they had made “good faith efforts” to prevent harassment and discrimination. An employer who fails to provide anti-harassment training may be unable to demonstrate “good faith efforts.”
In Swinton v. Potomac Corporation, for example, the Ninth Circuit Court of Appeals applied Kolstad’s rule and upheld a punitive damages award of $1 million in a harassment case, because the company, among other things, failed to train its workforce.
By providing harassment prevention training, an employer may even avoid liability altogether. In the cases of Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the Supreme Court ruled that an employer can escape liability for hostile work environment harassment by a supervisor if it could prove that: the employer took reasonable care to “prevent and correct promptly” any harassing behavior, and the harassment victim unreasonably failed to complain.
Courts around the country have made clear that to get the benefit of the Faragher-Ellerth affirmative defense, employers cannot simply point to their anti-harassment policy; they have to provide training.
Harassment Prevention Training Should Reflect Current Legal Standards
All harassment prevention training should educate employees in four key areas:
- Understanding what sexual harassment is.
- Types of sexual harassment, including examples.
- How to report concerns to an employer.
- How employers should respond when a report is made.
First, training should teach employees that sexual harassment is a form of unlawful gender discrimination, encompassing harassment based on sex or gender, sexual orientation and gender identity or expression. It’s not limited to sexualized behavior and can include any unwelcome conduct directed at an individual because of their gender.
As to the second element, training should explain the different types of sexual harassment and provide varied examples of harassing conduct, such as gender stereotyping, unwanted touching and harassment that can occur in virtual work environments.
Third, training should outline a clear complaint process that provides multiple, accessible avenues to make a complaint. It should emphasize that supervisors are obligated to promptly report any harassing conduct that they become aware of, even if no employee complains.
Finally, training should assure employees that upon receiving a complaint, the employer will undertake a prompt, thorough and impartial investigation. Employees should be advised that complaints will be handled confidentially to the extent possible and that the organization will not tolerate retaliation against anyone who reports a good faith concern about harassment.
Employers should also make sure that their training includes any specific content required in the states and localities where they operate. New York City, for example, requires that training cover bystander intervention techniques; New York state requires that training include information about the state’s sexual harassment prevention hotline. Further, employers must ensure that training is up-to-date and reflects ever-changing federal, state and local laws.
Consequences to Not Providing Harassment Prevention Training
Organizations that do not provide harassment prevention training expose themselves to legal claims, regulatory fines and penalties and reputational damage. Failing to provide training also invites more long-term consequences. In a 2018 study, the National Academies of Sciences, Engineering and Medicine found that when sexual harassment is tolerated or ignored, incidents of harassment increase. According to a 2015 Department of Defense report, a persistent climate of workplace sexual harassment is linked to an increased likelihood of sexual assault.
To lessen all of these consequences, employers should implement a training program as one part of a comprehensive harassment prevention strategy. This strategy should reflect a zero tolerance policy and dedicated commitment from leadership. This includes consistent and demonstrated accountability when harassment arises, strong and comprehensive harassment policies and regular training tailored to applicable legal requirements as well as the audience and the organization.
Additionally, effective training should be viewed as an opportunity to build a work environment where every person feels safe, appreciated and empowered. When it comes down to it, complying with sexual harassment awareness training standards is more than just checking boxes; it’s about fostering workplaces where each person can advance without having to worry about being subjected to harassment or discrimination.
