When It Comes to Harassment Training, One Size Does Not Fit All

As of April 15, 2019, twenty-seven states either have: a. a legislative requirement that some employees receive training on the prevention of unlawful harassment in the workplace or b. proclaimed an administrative or legislative recommendation that harassment training take place among some portion of the jurisdiction’s workforce.

New York, California, Connecticut, Maine, Delaware – and to an extent D.C. – (which require training for state or other public-sector employees) have gone beyond many of their peers by enacting sweeping legislation that is applicable to large portions, if not all, of workforces in these states.

These specific states enacted their training laws to suit the needs of each individual jurisdiction. The needs of employers operating across multiple states were not contemplated by any of the legislatures when these laws were developed.
Enforcement practices are ignorant of the fact that a great many employers operate in more than one state that has a mandatory training law. The increased training requirements have created substantial burdens on multi-state employers, leaving them scratching their heads as to the best approach for training some or all of their workforces so the businesses can comply with the legislative requirements and ensure that the remainder of the workforce is not left behind in this important education.
Now employers are recognizing that a “check-the-box” approach to of getting training “out of the way” is not only ineffective, but also potentially damaging to workplace culture. Further, it has become crystal clear among harassment training experts that a “one-size-fits-all” approach simply does not work.

Different States Have Different Requirements

Compliance with the various state mandatory training laws is admittedly burdensome and time consuming, but it is important to understand the key differences among the five (discounting D.C.) states that require a large portion of their workforces to receive training.

Varying Time Requirements

California and Connecticut managers are subject to a two-hour training requirement, whereas New York, Maine and Delaware have no specific time requirements. Further, California’s non-supervisory employees must receive at least one hour of training in order to comply with the law in that state.

While the employer who allocates time for comprehensive training may see value in providing two hours of training to all employees, many employers believe that employees taking two hours of the work day to attend harassment training is more than they can spare where such a time requirement is not imposed by law.

Syntrio recently concluded that one hour is a “sweet spot” minimum to effectively communicate the necessary instruction to build the foundation for an effective harassment prevention program. Therefore, if you have managers in multiple states, it would be necessary to provide multiple versions of the manager training to account for the increased volume of training required by California and Connecticut.

Different Content Requirements

A non-state-specific course must by nature focus on federal law, which is the floor for harassment protection. Employees in states with mandatory training laws must receive more detailed state-specific information.

Aside from the basic principle that each mandatory training law requires special training for managers, much of the content and language requirements set forth by the states with mandatory training laws differs:

  • Protected classes vary state to state (which are additions to federal law), thereby creating the need for unique descriptions and scenarios.
  • Definitions of harassment and its interpretation are significantly different in various states (many states are broadening the definition of harassment and its historical analyses).
  • Manager duties prescribed by specific states differ (and conflict) with one another.
  • California requires training on abusive conduct, a state-specific concept and definition.
  • California requires training on gender identity, gender expression, and sexual orientation, none of which are uniformly protected by the federal law, Title VII of the Civil Rights Act of 1964.
  • California recommends training on categories other than sexual harassment such as age, race, and religion, while New York training specifies a focus on sexual harassment.
  • New York, Delaware, Connecticut, and Maine require detailed instructions on how and where to report a claim of harassment to the administrative agency within that state.
  • New York has a state-specific claims reporting process that must be included in the course. It is more detailed and thorough than those in other states.
  • New York requires information on New York City laws, that differ from state and federal law significantly.
  • Connecticut and Maine require line-by-line language from the state anti-discrimination laws and verbatim description of reporting procedures inapplicable in other states.

As you can see, attempts to rationalize and distill all of the above training requirements (which are part of the significant differences) have been futile. For this reason, Syntrio takes the approach that “one-size-fits-all” courseware that generalizes the above requirements is non-compliant for employees who are subject to state-specific harassment training requirements and it diminishes an employer’s ability to train its staff to requirements mandated by these states.

Time Is Money: Examining the Length of Harassment Training Courses

Harassment training costs money, both in employee time and actual dollars spent. Because of the significant resources that must be expended to train a workforce on the prevention of workplace harassment employers are understandably looking for the most “bang for the buck” on their investment. While efficiency in training is absolutely critical, there comes a point where a core harassment course is simply too brief to educate a workforce on the important concepts that encompass the world of harassment prevention. So where is the “happy medium?”

Five states (and the District of Columbia) currently require at least some employees to be trained on the prevention of harassment in the workplace. Of those five states, only California and Connecticut have statutorily mandated minimum training requirements, both requiring a minimum of two hours of training for managers. California recently enacted a law requiring non-supervisory employees to also be trained, but the state requires just one hour of training for non-managers on the same topics as the two hours of training required for managers. The other four jurisdictions requiring training (New York, Delaware, Maine and D.C.) did not set a minimum within their law, but New York infers in its guidance (and verified in response to a question on the subject) that 60+ minutes is the minimum amount of time required to train employees on the topics it considers mandatory for training to be in compliance with the law.

The previous statement is curious given the “FAQ” answer the New York Department of Human Rights (“NYDHR”) gives in response to the question “is there a minimum number of training hours employees must complete each year?” New York State answered that question with a seemingly unambiguous (yet very qualified) “[n]o. As long as they receive training that meets or exceeds the minimum standards.” In order to determine what those minimum standards are, it is necessary to examine the NYDHR's model training script that was released when that state’s law went into effect. While the script outlines the necessary topics for minimum training, the interactivity requirement in the state’s law certainly adds significant time over just reading through the 23 page script.

A representative from New York State responded to a telephone inquiry on the subject in January 2019 that the minimum training program was written and intended for an approximately 60 to 90 minute delivery time. Therefore, while the state set no minimum time within its law, it not only requires training that meets the minimum standards set forth in the law, but the State itself was unable to develop a program that lasts less than 60 minutes (and more likely longer).

California and Connecticut surely did not develop their statutory one- (California non-supervisors) and two-hour minimum time requirements without conducting significant research into the amount of time it would take to effectively and comprehensively train employees on these important subjects. While the skeptical employer may argue that those requirements were first developed 20 (Connecticut) and 12 (California) years ago, New York followed up with creating a course that was designed to take between 60-90 minutes. Therefore, it is clear from state Human Rights Department conclusions that an hour is the minimum amount of time a core harassment prevention course should be designed to take, and it is possible that state fair employment agencies subscribe to a “more is better” approach.

What to Look For When Selecting Your Training Methods

The aforementioned information should be taken into account when considering the use of an exclusive micro-learning platform or other short-form harassment prevention approach to your organization’s needs. While your state may not have a training requirement, it is certainly important to fulfill this important need as part of the duty your organization has to maintain a culture free of harassment. Even if the well-being of your employees and corporate culture take a back seat to preventing and defending lawsuits (which is not a recommended approach, yet one that we have heard over the years as a reality for some employers) the more than $1 billion annual harassment verdict and settlement costs routinely estimated over the last several years should be enough to convince the most skeptical of training customer that this is a subject well worth investing the proper time and dollars into doing correctly.

While there is no way to quantify what amount of training “works,” in over 12 years of experience providing hundreds of in-person and online training programs to companies of all sizes it has become clear that one hour is the minimum amount of time needed to effectively illustrate the concepts contained in such a broad and complicated topic as the prevention of workplace harassment. While one hour may seem brief, an expert trainer skilled in keeping the audience’s attention can effectively teach these concepts and provide ample time for the interactivity and learner engagement that is so critical to making the educational concepts stick. Anything less is truly doing the workforce a disservice, and nothing more than an attempt to “check the box” without providing an actual learning opportunity.

The most effective approach to training (as reinforced by the states that have developed their own mandatory minimum training scripts and set time limits) is a long-form core training course followed up by a learning continuum consisting of short form training that emphasizes particular concepts and issues. Such an approach builds the foundation necessary for continued learning and is without a doubt the most effective means of improving corporate culture and empowering your employees to work together to prevent incidents of harassment from occurring going forward.

Examining the Effectiveness of Harassment Training

Much ink has been spilled debating the effectiveness of legalistic (and formulaic) anti-harassment training. Nearly everyone agrees that grouping employees in a room with a 1980’s era VCR/television combination unit and playing a video recorded by a corporate lawyer with little or no training on preventive practice is the wrong way to conduct harassment training, unless the only aim is to “check the box” for legal defense enhancement purposes. In the wake of the #MeToo movement not only has there been an increased number of states requiring harassment training, but also an increased backlash from employees who are being force-fed training they feel is out of touch and overly legalistic.

So what to do?

Measuring and Reinventing Sexual Harassment Training, a new article that appeared in Bloomberg Law, has taken note of recent research about the effectiveness (or lack thereof) of anti-harassment training. In the article, the author notes a recent study that revealed companies are afraid to take measures on the effectiveness of harassment training because they are afraid of what the results might reveal. This type of approach is no longer acceptable in an era where harassment of all kinds receives heightened scrutiny. Providing methods of training that actually change culture is essential to creating a workplace that is devoted to respect and inclusion, and failing to develop methods to gauge the effectiveness of training is tantamount to doing nothing at all.

Syntrio has long taken the approach that legalese and lack of engagement are taboo in workplace harassment training. We believe strongly in a blended learning approach that is not over in just one hour, once every two years. Instead, implementing a learning continuum and combination of training methods is the best way to affect actual change in employee behavior, rather than scaring them about legal damages or trying to change beliefs, which has been proven impossible.

A recent study showed that on college campuses where students and employees were trained about the tactics they can use when witnessing acts of sexual violence, members of those communities became empowered to do something about it. This same approach is critical to helping stop workplace harassment, and is a major reason why Syntrio’s courses put heavy focus on what co-workers and managers can do when they hear of or see incidents they believe could amount to harassment (or even inappropriate behavior that does not meet the legal definition of harassment).

The Bloomberg article cites the need for harassment training from a number of perspectives in order to lead to greater inclusion. When organizations refuse to train their employees on perspectives that are at odds with their values or beliefs they demonstrate that they are not inclusive, and are not organizations that tend to attract or retain the best talent. Therefore, it is imperative that training include perspectives on harassment that go far beyond the traditional “male to female” approach that is taken in so many e-learning courses. Syntrio wholeheartedly agrees with this approach and has incorporated a number of diverse perspectives on the topic into its courseware.

While there may not be a quantitative method to measure the effectiveness of harassment training, there certainly are a number of qualitative and social science methods to determine if the program you have implemented works. By staying ahead of the curve and ensuring that you are using a method that works for your organization you are far more likely to create and maintain a culture of workplace respect and tolerance rather than harassment and abuse.

Remaining Cognizant of Harassment by Non-Employees

Few areas of harassment training draw more confusion than cases involving third parties. Employers are left wondering what they can, and should, be doing to protect their employees from harassment that originates via contact with those outside the organization. 

Hewitt vs. BS Transportation, a recent case decided in the United States District Court for the Eastern District of Pennsylvania, highlights these concerns, and its holding illustrates the difficulty in determining when an employer has done enough to protect its employees from harassment.

A truck driver named Carl Hewitt alleged that his supervisor at BS Transportation failed to take the required “prompt and corrective remedial action” when he complained of harassment by a male employee at a fuel distribution company that contracted with BS Transportation. Hewitt claimed that years of harassment occurred at the refinery, including multiple weekly incidents of sexual comments and hand gestures by the refinery employee. Hewitt alleged that he “begged” the refinery employee to stop making remarks (which made him more aggressive).

Hewitt further claimed that he complained but BS Transportation did nothing to stop the refinery employee’s behavior, specifically,  that his manager at BS Transportation promised to make a report but never told the refinery about Hewitt’s complaint, much less investigate the matter personally or via BS Transportation. Exacerbating the situation, Hewitt alleged that his manager told him to keep quiet about the incident and ultimately fired Hewitt when he brought up the incidents again.

The Eastern District of Pennsylvania held that Hewitt’s lawsuit could proceed, and that even though the issue of whether employers are liable for sexual harassment by non-employees is an open question in the Third Circuit, the Eastern District relied on other rulings by district courts within the Third Circuit who had previously held that employers are liable when they knew (or should have known) of an incident and failed to take prompt and corrective remedial action to stop the harassment.

This case will be worth following as it proceeds, as the Eastern District of Pennsylvania attempts to bring its precedent in line with that in the majority of states and judicial circuits in the United States who interpret the law as requiring employers to take action to stop harassment by third parties at a minimum when they learn it is occurring or hear of a complaint.

As such, employers should always maintain a policy of investigating and following up on complaints of harassment that employees bring against contractors, interns, vendors, customers and others dealing with the organization, regardless of where the alleged harassment occurs. In addition to being sound legal practice, such a policy will undoubtedly make your employees that interact with third parties feel more comfortable at work and know that you are doing what you can to protect them.

‘Oliver the Ornament’: A Christmas Tale With Workplace Parallels

In our house we practice the “Four Gifts of Christmas Rule” - each person receives one gift they want, one gift they need, one gift they wear and one gift they read.

Unfortunately, I don’t have any suggestions for the first three gifts on the list. But I do have a great recommendation for the gift you read, and it also ties in nicely with the difficult task we have as parents trying to explain to our children what we do at work every day.

Earlier today, the US President’s wife, First Lady Melania Trump visited Children’s National Medical Center in Washington, DC for the time-honored tradition of reading to the patients. This year’s book was Todd M. Zimmerman’s Oliver the Ornament, a heartwarming story about a group of ornaments preparing for the Christmas season.

Now, I’m sure you’re wondering how a children’s Christmas book can draw parallels to the adult workplace but, as the story unfolds, it is easy to see the juxtaposition of what employees in workplaces experience every day:

  • Oliver is simply one of a larger group of ornaments.
    • One employee within a larger organization.
  • Oliver has always been a prized ornament; however, this year he has a broken arm, so he is not sure if he will get put up on the tree.
    • Will diversity or discrimination stop the employee from getting the promotion or receiving recognition?
  • Edsel, a fire truck ornament, bullies Oliver and encourages other ornaments to do the same. 
    • A clear example of workplace bullying and discrimination.
  • Edsel even plots to have Oliver hidden away so he won’t be put on the Christmas tree.
    • An obvious instance of office politics.

I’m not going to spoil the ending for you, but rest assured that I would not have suggested the story if it wasn’t a happy one.

Oliver the Ornament a great springboard for discussions with your children about bullying. You can use it to explain to them that when you go to work every day, you try to serve as the advocate for the ‘Olivers’ where you work to ensure that every employee has a safe place to turn when confronted with an ‘Edsel’ at your office.

Also, it might not hurt to keep a copy of Oliver the Ornament handy on your desk for a little light reading for your team should an ‘Edsel’ rears his or her head.

For more information about Oliver the Ornament, visit www.olivertheornament.com.