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Harassment and Discrimination Training: Not a One-Time Deal

09-06-2017

Training employees in the areas of harassment, discrimination and retaliation yields many benefits. Training helps employers create a respectful workplace, which makes employees feel valued and included. It can also help increase productivity. These types of training initiatives also educate employees about their employer’s policies and practices and assist employers in complying with relevant federal, state and local laws. No doubt, training is a great idea!

When an employer makes the decision to conduct workplace training, it must then determine who will be trained (managers/non-managers, together or separate), how they will be trained (live, via webcast or online, and the length of the training(s), class sizes, etc.),1 what topics or policies will be covered, where the trainings will take place and when the trainings will take place. Many employers, however, do not think about another equally important question:  How often should they train their workforce? This is not always easy to answer, but one thing is pretty clear:  It is not a one-time deal.

There are many reasons to conduct training on a regular basis. An employer may decide to offer harassment and discrimination training sessions annually, biannually or every other year -- the frequency will likely depend on a variety of factors. These factors can include the size of the workforce and the rate of turnover and the rate of promotion to supervisory/managerial roles, as well as whether there have been specific issues in the workplace that need to be addressed. Realistically, an employer’s budget constraints may also enter into the decision. Regardless of the reasons prompting the decision to train their workforce, there are many benefits for employers who conduct trainings on more than just one occasion.

Legal Reasons to Train Periodically

There are legal reasons to conduct periodic trainings in the areas of discrimination, harassment and retaliation. A court or an agency may order that a workplace be trained in these areas as part of a settlement agreement.2 There are also states that have legal requirements for recurrent training.3 Another legal benefit of training employees is that employers who conduct workplace trainings may be able to assert an “affirmative defense” against claims of “hostile work environment” harassment by supervisors, meaning that the employer may be able to limit or avoid liability. If the employer can show, among other things, that the employer exercised reasonable care to prevent the harassing behavior (and the complaining employee unreasonably failed to take advantage of the preventative or corrective opportunities provided by the employer or to otherwise avoid harm), the employer’s exposure may be significantly reduced or avoided altogether.4 Courts have found that training is an example of an employer exercising reasonable care to prevent harassment.5 

An employer who asserts training as an example of how it exercised reasonable care to prevent harassment must show that the training was adequate -- training employees just for the sake of “checking it off” will not likely be sufficient to avoid or limit liability.6 Moreover, in a guidance designed for federal agencies, the Equal Employment Opportunity Commission (EEOC) emphasized that anti-harassment policies should “provide periodic training to all managers and supervisors regarding the terms of the anti- harassment policy and procedures.” The EEOC also explained that it is “critical” to ensure that “managers and employees understand the types of conduct that constitute harassment“ and noted that “[a]dditional training for employees would also be useful” in order to meet an employer’s responsibility to exercise reasonable care to prevent and correct harassment.7

Changes in Circumstances

Employers with a high turnover, or who tend to hire new employees on a seasonal or regular basis, may want to conduct training frequently and/or train new employees upon hire as a matter of course.  Otherwise, the employer runs the risk of having a number employees in the workplace who are unfamiliar with employer policies against discrimination, harassment or retaliation, and it will not matter that the employer trained some employees. In addition to new employees, employees who are promoted and become managers or supervisors, or take on managerial or supervisory responsibilities, will need to be trained with regard to their new job duties. The legal responsibilities and obligations of supervisors or managers are very different from those of non-managerial employees.8

Sometimes it is not the workforce that has experienced growth or change, but the laws and relevant regulations that have changed. In these situations, it is a good idea to update employer policies and make certain that employees understand the policy changes and are trained accordingly. Policies, and workplace trainings on those policies, must be up to date for an employer to demonstrate that it exercised reasonable care to prevent and promptly correct the harassing behavior. It is also important, for employee relations reasons, to provide employees with an opportunity to understand the policies and adjust their behavior to comply with any “new” rules or standards. 

Often there are other changes in circumstances within an organization that affect a workforce. The initial training may raise awareness and generally explain the employer’s policies, but the additional training may help employees to handle more challenging issues as they arise. This is true not only for those employees who may have been involved in an incident or an investigation, but also for employees who may not have been directly involved but who have heard about the issues that arose within the investigation. Even in the absence of a formal claim, an employer may decide that training is needed because an employee has raised issues or an employer has otherwise become aware of problems within the workplace. There may also be concerns that arise which may not be known to the employer prior to the training. Employees come to each training class with different experiences to share and learn from each other’s questions and the group discussions that follow. Although the circumstances and issues change from year-to-year, periodic trainings can help employers and employees alike to address matters on a regular basis. 

Reinforcing the Message

For many employees, understanding company policies can be a challenge. A thorough and comprehensive training includes legal and policy related information that employees may be hearing for the first time or about which they have long standing misconceptions. Although employees will learn a great deal in a single training initiative, a follow-up training is extremely beneficial because it reinforces the information from the prior training and can deepen employees’ understanding of the connection between policies and a respectful workplace. Whether an employer conducts training due to a court order or as a part of a settlement agreement, or the employer has no known issues but conducts trainings proactively, the first year of training can be beneficial -- and the second year even more so. 

A second round of training typically builds on the foundation of the first year. Even where the law and policies have not changed, a follow-up training (with new and different materials, hypotheticals and/or videos designed to promote interaction) increases the likelihood that employees will retain key concepts and gain an even better understanding of the issues and the policies and will adjust their behavior accordingly. Because they know what to expect from a training after having experienced it before, follow up trainings may be even more productive. Employees come to the training with questions and situations to discuss, which helps everyone to learn more - especially when the training is live.9

A good training session lays the foundation for creating a respectful workplace. A good follow-up training not only reinforces the lessons from the prior training - without the boring repetition - it gives trainees the opportunity to more deeply understand not only the employer’s policies but their individual roles in a respectful workplace. Employers may benefit from offering a different type of training to build on the earlier foundation. This type of training may have the trainer discuss policies and law briefly but then segue into more challenging scenarios that allow for deep discussion. Other employers may decide to change the emphasis of the training. For example, an employer may choose to augment the more typical harassment and discrimination discussion and focus on the role of unconscious bias in the workplace.10 There are many ways to keep employees interested, engaged and to help them to continue to learn even more about how to be respectful to one another in a diverse workplace. 

In Closing

Employers want their employees to be knowledgeable in all of the areas that impact their jobs. Employee education and skills training in any area, however, is rarely a one and done situation. Learning how to avoid harassment, discrimination and retaliation, and knowing what to do when an issue occurs, is no different. Creating and maintaining a respectful workplace is a continuous process, one which requires periodic follow up and reinforcement. As with other types of training, the results of an employer’s efforts will correlate to the company’s commitment to its employees’ success in learning about the employer’s policies and relevant federal, state and local laws and applying that knowledge appropriately.

1 The “Goldilocks” Training Dilemma: Does It Fit?, Employment Practices Solutions, Inc. Newsletter, June 1, 2016, http://www.epspros.com/news-resources/whitepapers/2016/goldilocks-training-dilemma.html.
2 United States of America v. City of Caribou Maine, 2015 WL 3815110 (D.Me.May 5, 2015) (consent decree provided that employer would review and revise its sexual harassment policies and provide training to its employees on its newly revised policies); EEOC v. Coll View Donuts Llc., 2015 WL 9522351 (N.D.N.Y. May 27, 2011) (consent decree provided that employer would provide two hours of training to employees on a bi-annual basis on federal laws prohibiting discrimination in employment, with a special emphasis on laws prohibiting sex discrimination, sexual harassment and retaliation); Equal Employment Oppt. Comm'n v. Wells Fargo Bank, N.A., 2014 WL 4564112 (D. Nev. Sept. 15, 2014) (with consent decree employer agreed to take preventative steps, including annual anti-discrimination training).
3 For example, some states require sexual harassment prevention training. See Cal. Gov't. Code § 12950.1, also known as Assembly Bill 1825 (California requires management training every two years, and within six months of hire/promotion to manager, for employers with 50 or more employees); Conn. Gen. Stat. § 46a-54(15)(B) and Conn. Agencies Regs. § 46a-54-204 (Connecticut requires management training for employers with 50 or more employees, and managers must be trained within six months of hire); Me. Rev. Stat. Ann. tit. 26, § 807(3) (Maine requires training for all employees within one year of employment, and for managers within one year of assuming a managerial role for employers with 15 or more employees).
4 This defense was established by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).
5 Crawford v. BNSF Ry. Co., 665 F.3d 978 (8th Cir. 2012) (employer successfully avoided liability for harassment where employees had been trained on how to report harassment and the company took immediate action after one employee filed a formal complaint); Tepperwien v. Entergy Nuclear Operations, Inc., 663 F.3d 556 (2d Cir. 2011) (employer asserted affirmative defense and employee was not entitled to punitive damages for retaliation in part because employer trained all its employees on its anti-harassment policy and provided employees with many avenues to report discrimination, retaliation, or harassment); EEOC v. Wal-Mart Stores, 187 F.3d 1241 (10th Cir. 1999) (the extent to which an employer has educated its employees about its anti-discrimination policies and the requirements of Title VII is an important factor in deciding whether it is insulated from liability).
6 EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422 (7th Cir. 2012) (although management was required to take harassment training, the training was inadequate and employer did not engage in good faith efforts to educate its employees about harassment); Clark v. United Parcel Service, Inc., 400 F.3d 341 (6th Cir. 2005) (court held that effective harassment policy should provide for training regarding the policy and rejected employer's affirmative defense because there was no evidence of training); Bishop v. Woodbury Clinical Laboratory, 2010 WL 1525922 (M.D. Tenn. 2010) (court rejected the employer's affirmative defense despite the fact that the employer had an existing anti-harassment policy that was published and provided to all of its employees, because there was no evidence offered to demonstrate that the employees understood the policy or received any training on the policy and reporting obligations).
7 Equal Employment Opportunity Commission, Model EEO Programs Must Have an Effective Anti-Harassment Program, (September 2005).
8 Employers can be liable for harassment by supervisors under principles of agency. Faragher, 524 U.S. at 802-804 and Burlington, 524 U.S. at 762-763. Employers are strictly liable for supervisory harassment that results in a tangible employment action. Faragher, 524 U.S. at 777 and Burlington, 524 U.S. at 759. See also EEOC Enforcement Guidance, Vicarious Employer Responsibility for Unlawful Harassment by Supervisors, June 18, 1999. Employers are generally liable as well for supervisory hostile work environment harassment, although employers can avoid liability by asserting the “Faragher-Ellerth” defense. See footnote 3 above, and accompanying text.
9 Anti-Harassment Training: Why a Qualified In-Person Trainer is the Best Option for Your Company, Employment Practices Solutions, Inc. Newsletter, January 1, 2013, http://www.epspros.com/news-resources/whitepapers/2013-prior/anti-harassment-training.html.
10 Jessica Caspe, Mitigating the Impact of Unconscious Bias in the Workplace, Employment Practices Solutions, Inc. Newsletter, May 3, 2017, http://www.epspros.com/news-resources/whitepapers/2017/mitigating-the-impact-of-unconscious-bias-in-the-workplace.html.