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

Effective training programs teach employees how to report misconduct. Early reporting helps to curb issues before they spiral out of control. That’s a good thing. Despite some popular opinion, “whistleblower” is not a bad word.  You want some good whistleblowers.

According to a recently published Spherion Workplace Snapshot survey, more than 1/3 of U.S. adults surveyed have witnessed unethical activities at their workplace, but only 47% are likely to report it.

What encourages employees to report? A strong ethical culture. According to the Ethics Resource Center, employees in organizations that have a strong ethical culture are about 30% more likely to report misconduct than those in organizations with a weak ethical culture

Effective, high quality training is critical to that culture, because it brings your policies (which few people read, by the way) to life. It puts them in context, makes them memorable, and allows people to incorporate the fundamentals into their everyday work lives.

The most common forms of ethical breaches relate to bread and butter employment law issues. This is why basic employment law training (with a focus on harassment and discrimination prevention) continues to form the foundation of employer’s compliance training programs.  According to 2005 statistics compiled by the Open Ethics & Compliance Group (OCEG – www.oceg.org), 60-70% of complaints made via employer ethics “hotlines” are HR and employment law related.

Is it any wonder employers care most about their ethics and employment law training programs? I continue to see the trend of organizations placing the most effort and care in their ethics & code of conduct training, and their harassment and discrimination prevention training. While other specialized topics are important (e.g. antitrust, FCPA), they are dwarfed by the basics.

Make sure your “basics” are as effective as they can be.

A few hours ago, I hosted a webcast on the basics of ethics and code of conduct training for more than 2,000 people. It was a record turnout. Compliance training is obviously top of mind these days.

What stuck me in the Q&A session was the number of people connecting the dots between the Federal Sentencing Guidelines training requirements, and California’s AB 1825. There are many similarities between the two – the most important being (1) the periodic requirement (training is not a one-time event), and (2) the need for “effective” training (meaning quality matters – you can’t just “check the box.”)

AB 1825 is forcing many companies to engage in broad-scale, mandatory education. For companies that are embracing e-learning as a training methodology (a necessity for most employers of any significant size), 1825 is like the arrow-head of compliance training. Because the California statute is the first of its kind to really scrutinize the quality and methodology of training, it is becoming a benchmark by which training outside of CA, and outside of harassment prevention, is being measured.

Frankly, this is a good development. There’s a lot of really horrible online compliance training out there. In many cases, it has given e-learning a bad name. A popular approach has been to simply aggregate content, and give employers access to a “library.” When you start to check out the library, you realize that the “courses” are little more than self directed power point slides – maybe with a few audio clips and questions thrown in. You get a lot of stuff, but the stuff ain’t that great.

I can assure you that building this kind of courseware is cheap and easy with the authoring software now widely available. You don’t need to pay a compliance training vendor top dollar for this kind of content or production quality. You could build it yourself, and for a fraction of the cost.  But AB 1825, with its insistence on quality and interactivity, has simply rejected these types of programs. They don’t cut it under the law, or its accompanying draft regs.

So if you are focused right now on assessing ethics training, and harassment training is the farthest thing from your mind, you should still pause to review the 1825 requirements. They provide a good standard for any kind of compliance training. 

And doesn’t California lead the way in these matters in any event? Chances are, you are going to be required to comply with the elevated standard in the future. Why not stay ahead of the curve?

As part of its commitment to ending race-based discrimination, the EEOC revised its long-standing Compliance Manual today. The revisions are designed to address what the EEOC calls "contemporary discrimination issues."

In addition to defining race and color discrimination, the new EEOC Compliance Manual also addresses what it terms "related protected bases"—national origin, religion, and "intersectional discrimination," i.e., discrimination based upon more than one protected basis, such as both race and sex.

The new EEOC standards underscore what I’ve been promoting for years. Harassment and discrimination prevention training cannot focus exclusively on sex. In the real world, sexual harassment often occurs in combination with other forms of harassment, such as conduct based on race and age. There is also a rapidly growing incidence of non sex-based discrimination, especially with respect to religion and national origin.

California’s AB 1825 has erroneously caused many companies to “silo”’ their training programs into “sex only” efforts. This phenomenon has been fueled by confusion over the requirements of the law. Sadly, it has been further promulgated by opportunist training vendors with “sex only” training programs who are looking to profit from the misconception. I have spoken with several employers who have literally considered deleting segments of their online and live training programs that touch on other protected categories, because they don’t want to “lose any minutes” toward the 2 hour requirement.

Here is the bottom line. AB 1825 permits training outside of sexual harassment – and it counts toward the 2 hours. The plain text of the law requires that training provide “practical examples aimed at instructing supervisors in the prevention of harassment, discrimination and retaliation.”   The new draft regulations (expected in the coming weeks) will clarify this fact.

Did the California Legislature intend to eradicate other forms of harassment and discrimination training with AB 1825? Of course not. As parties with clear business interests market their opinions to you, rely on common sense.

According to the California Supreme Court, raunchy talk can sometimes be a necessary part of the job.  The court’s unanimous ruling in Lyle today threw out sexual harassment claims made by a former writers' assistant on the NBC hit television show "Friends." View details of the Friends sexual harassment case.

The case does not represent a “hall pass” to be vulgar in the workplace. Lyle highlights the relevance of context in evaluating sexual harassment claims. The Court emphasized that whether a work environment is sexually hostile can be determined only by looking at all of the circumstances, including the frequency, severity, and whether it unreasonably interferes with an employee's work performance. That means some employers may have more protection against harassment claims than others simply based on the type of work they’re doing. The "Friends'" writers successfully argued that their sex talk and antics were just part of the job.

So some “creative” workplaces will have lower “raunch” standards than others – for lack of a better term. This is hardly groundbreaking, as there are many jobs, including those outside of the entertainment industry, where exposure to sexual content is part of the gig. I just need to think back to the first sexual harassment case I worked on as an employment lawyer. Some of the evidence read like late night cable show script … 

The issues addressed in Lyle remind me of an important training lesson that applies to all industries: It is a serious mistake for programs to suggest that any sexual conduct or content in the workplace is automatically a violation of policy, and potentially the law. Some employers take this strong “hammer over the head” approach, hoping that by eradicating any hint of sex in the workplace, they will better educate employees, reduce risk and lower incidents. It does just the opposite.

Suggesting that employees can never touch one another (not even a friendly, consenting hug) or that any conversations about relationships and pop culture are off limits (no re-hashing last night’s episode of Desperate Housewives) creates a dangerous and artificial standard. It actually manifests risk on two levels: (1) hypersensitive employees feel that fairly innocuous incidents are “blatant harassment”, and (2)  the rest of the workforce resents being managed under a sanitized and unrealistic set of rules. The result is that nobody actually understands the true standards of prohibited harassment – which is what the training is supposed to be about. 

I think the worst example I have ever seen of an over-sanitized online training program presented the following scenario – Fred has a picture of his girlfriend on his desk from a recent tropical vacation. Fred’s girlfriend is wearing a bikini. Question: Does Fred’s picture contribute to hostile environment harassment? Answers: Definitely, Probably or No.  

Ok, stop laughing, and keep reading, because it gets better. 

The answer was “Probably.” (!!!) Needless to say, I found this shocking. The photo used in the online program showed a smiling woman in a bikini top. Other than the fact she was rather large-chested, it was neither vulgar nor explicit.  She even had on a sarong bottom – and a sun hat to boot. 

What message do you think that training example sent to employees? Answer: That any hint of sex, relationships or the human body, when present in the workplace, is “probably” harassment. That’s not the standard under any state or federal law, nor under any half decent harassment policy.

I feel bad for the HR department in companies using that training. I can only imagine the complaints they get.