Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

Employers, training vendors and other interested parties attended the first of two public AB 1825 hearings today in San Francisco. Attendees were able to express their concerns about the first set of draft regs (published in December 2005), and to provide suggested revisions. The turnout was impressive, with at least 50 people eager to voice their opinions about sexual harassment training – how it should be regulated, and how it shouldn’t.

Many issues were presented, but only two drew real controversy: (1) whether e-learning is permitted under the regs, and (2) how to measure 2 hours of online training.

It is mind boggling how the first issue could require debate in this regulatory process. Apparently, there is confusion about the clear language of the statute which states that an employer shall provide “two hours of classroom or other effective interactive training and education regarding sexual harassment.”   Better stated, perhaps there is confusion over the meaning of the word “or.” Regardless, several presenters insisted that AB 1825 only permits classroom-based training. 

Clearly, the Legislature did not intend to mandate live, face-to-face training for thousands of California employers. While this would be a nice boon for the live training industry, it is highly questionable whether the demand could even be met by providers – or afforded by employers. The Internet did arrive, after all, more than a decade ago, and e-learning has been a successful training methodology for years.  Some would argue it is actually superior to live training in some ways (e.g. being able to force participation in interactive exercises and provide an individualized experience.)  

In any event, all of this was put to rest when Sarah Reyes, author of AB 1825, testified that it was the clear intent of the Legislature to include e-learning. Both she, and the commissioners, appeared rightfully confused that the issue was even being questioned at the hearing. Employers can choose between live or online training. Both are solid methods.

How to measure two hours of e-learning was the second issue of controversy. This is an area where the Commission and proponents of adult learning theory are at odds. E-learning is a self paced experience. Good e-learning is developed so that it covers a designated amount of content in an average anticipated run time. The language in the first draft regs was based on these tenets. The Commission, however, feels that “two hours means two hours.” 

The long and short of this controversy is that the next set of draft regs will likely impose a requirement that e-learning programs take no less than two hours to complete. Practically speaking, this means providing a training program that either (1) employs a timer that forces a learner to view additional content if s/he finishes early, or (2) contains forced audio files that do not even allow a learner to complete in less than two hours on his or her first pass through the training.

The forced timing issue may be inevitable. Employers need to ensure, however, that in complying with this new anticipated requirement, the underlying quality of their training is not compromised. A low-end training program that forces a learner to “hang” on pages or repeat the same content over and over again, just to “get to two hours,” is a really bad idea. Think of the message it sends to your employees. Think of how it might play in front of a jury. Instead, buy or build a great training program that actually takes two hours for an average learner to complete because of its content and interactive exercises. A timer or forced audio files should simply act as a safety net, and should not detract from the learning experience.

It was a long afternoon – and quite heated during the “debate” about online training. At the end of the day, precious time was wasted arguing something moot. Let’s hope those live harassment training programs are a little more on point.

Much of the same story today as we saw in San Francisco on the 1^st. (See my previous post from 2/1/06.) Shockingly, the anti e-learning crusaders are continuing with their “live classroom training only” platform. More wasted time. E-learning is clearly allowed under AB 1825. The law’s author, as well as the Commission, can only repeat this fact so many times.

There was then the suggestion that if e-learning must be allowed, the regs should state that classroom training is “preferred.”  Hoo boy. I will refrain from caustic candor at this portion of the post … These live trainers are better off investing their time in good sales and marketing efforts for their classroom training programs. 

Onto more important issues.

Two topics got additional weight during the hearing:

(1) The expertise threshold for classroom trainers and developers of e-learning needs to be intensified and more clear; and

(2) Employers can, within their two hours of training, cover other forms of harassment beyond sex. 

The second issue is actually clear from the text of the law, as AB 1825 requires that training include “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.”  (Note the lack of the “sex” modifier.)  AB 1825 clearly, however, stresses sexual harassment – which has some folks confused. So the new draft regs will probably include some clarification on the ability to address issues such as race, disability and age-based harassment within the two hours of training. 

Here’s the bottom line --training only on sexual harassment is a really bad idea. While sexual harassment claims do form the bulk of FEHC complaints, there is an enormous volume of complaints related to other protected categories. Liability in those areas can be significantly reduced with good training. 

More on this issue to come.

Following up to my 2/10/06 post, employers need to be concerned with more than just sexual harassment in their training programs.  According to the EEOC's most recent stats, charges from 2005 break down as follows:

• Sex discrimination - 30.6%
• Retaliation - 29.5%
• Age - 22%
• Disability - 19.7%
• National origin - 10.7%
• Religion - 3.1%
• Equal pay - 1.3%

(The total exceeds 100 percent because individuals may allege more than one kind of discrimination in a complaint.)

While AB 1825 has the country focused on sexual harassment, these numbers demonstrate the importance of addressing other protected categories.   A great workplace harassment training program can focus on sex, but seamlessly address other areas. 

Beware of training vendors who insist your training program must only include sexual harassment content. Most companies who spin this story need to, because they have erroneously developed programs that only contain sexual harassment content. (See how neatly that lines up?) 

These training laws have created great incentives for employers to change workplace behavior, and reduce risk. At the same time, they have sparked a very competitive training market that frequently confuses lucrative sales and marketing messages with the truth.

Today, the US Supreme Court in Ash v. Tyson Foods decided that use of the term “boy” can alone be evidence of discrimination, depending on the factual circumstances. 

In terms of the training implications, managers and employees alike need to be educated about the potential impact of language choices. Recognizing the importance of the issue, we just wove this USSC decision into one of ELT’s upcoming Workplace Harassment vignettes. 

This is the beauty of e-learning programs. They can be seamlessly updated and revised to reflect cutting edge developments.