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.