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

Today, the world's largest retailer agreed to pay $315,000 to settle two EEOC sexual harassment lawsuits.

The lawsuits charged that company employees subjected 3 female employees to sexual harassment at a store in Bradenton. As part of the settlement, Wal-Mart must post its non-discrimination policy and provide annual harassment training for managers.

As almost everyone in our industry is aware, Wal-Mart also faces a class-action lawsuit in federal court filed on behalf of as many as 1.6 million female employees alleging sexual discrimination. The company has appealed a decision in that case that allows the women to sue as a group.

So to state the obvious, all eyes are on Wal-Mart. The institution of annual harassment training sends a strong message to the employer community – harassment training is critical, and needs to take place on a regular basis.

Following the landmark US Supreme Court decisions in Faragher and Ellerth, employers have struggled with what constitutes “periodic” training under federal law. The Wal-Mart settlement suggests the highest standard – every year. California’s AB 1825 requires a standard not far behind – every two years.

So non-California employers should take note. Federal law expects you to conduct ongoing, “periodic” harassment prevention training. Training less than every two years will raise an uncomfortable question. Why not follow the trend of more regular training?

That’s not a question you want to have to answer in court.

Do you have teenagers in your workplace? How effectively do they integrate with your adult employees?  As the summer kicks off, and a flood of young people enter the workforce, it’s something to think about. The EEOC thinks so too, and just published a set of tips and best practices for companies that employ teens. (View the EEOC teen employment tips.)

Of critical concern is preventing harassment and discrimination by and against young workers. The EEOC has highlighted training as an important component – especially for front line supervisors. Equally important is clearly communicating, updating, and reinforcing discrimination policies and procedures in a way that young workers can actually understand and connect with. That means not relying on a fine print employee handbook to do the work for you.

A good harassment prevention program gives appropriate treatment to teenage-specific challenges. At ELT, I’ve seen two issues come to the forefront: (1) inappropriate conduct by young workers, who are still learning the boundaries of acceptable workplace behavior; and (2) the silencing and marginalization of young workers who feel powerless in situations of harassment, and do not know where to turn. (Among teenagers, the fear of being perceived as a “rat” or “tattler” is particularly strong.)

EEOC Vice Chair Naomi Earp, who is heading up the agency’s national Youth@Work Initiative, encouraged companies employing younger workers to “be extra vigilant” during these summer months, when teen employment peaks.

I would encourage all organizations that employ young workers to consider devoting a portion of their training programs to teenage issues. The lessons are universal, but you will be speaking to an audience that is often ignored in compliance training. Better yet, you’ll be better educating your adult workers of tomorrow.

Today, California’s Fair Employment and Housing Commission adopted long-awaited, revised draft regulations for AB 1825. The regs will undergo a few more tweaks and revisions as a follow up to today’s public meeting. They will likely be published in late June / early July 2006.

Why should employers care about revised regulations that are still in draft form? Because further changes are very unlikely given the lengthy review and revision period that followed the first draft of the regs published in December of 2005. Employers planning for their 2007 retraining need to pay close attention to the regs, as they place more stringent standards on training programs, e-learning in particular.

Once the regs are published, a detailed summary and analysis will be available for your review on this site.

In the context of harassment and discrimination claims, most people understand that retaliation means getting fired or demoted for reporting an incident, or cooperating with an investigation. Most people need to broaden their perspective.

In today’s Burlington Northern Sante Fe Railway decision, the US Supreme Court ruled that workers can win damages by showing they were the victims of more subtle forms of retaliation, such as shift reassignments and exclusions from training.

Stressing the need for strong anti-retaliation provisions, Breyer, writing for all of the justices, concluded that Title VII of the 1964 Civil Rights Act "depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses." Alito, Bush's most recent appointee to the bench agreed with the court's overall decision, but said the new retaliation standard would not be “practical” on the job.

The practical impact on employers is that managers need to be trained on the new standard, because it is now the law. Managers need to understand the severity and pervasiveness of retaliation claims (roughly 1/3 of all claims filed under Title VII according to EEOC retaliation information), and that more subtle behaviors can constitute retaliation.

As I have written previously, AB 1825 stresses the need for training content on retaliation. (See my post from 1/31/06.) As you build or assess new training programs for California and beyond, keep the Burlington decision top of mind. Any good training program will give strong treatment to the issue of retaliation, and include the Burlington standard.

The new AB 1825 draft regs are here – at long last. As many of you know, ELT helped to write the regs as part of the Blue Ribbon Advisory Committee to the FEHC. See a detailed summary of the latest AB 1825 regulations.

So what are the highlights? For a quick synopsis, here is what really matters:

• The regs are not final, but will likely undergo very little change before they are adopted. That means you need to pay close attention to the regs as you plan your 2007 training efforts.
  
• E-learning and webinars need to be highly interactive (questions, skill-building activities, hypotheticals), and include the ability for learners to submit questions. Questions must be responded to in no less than 2 business days.
  
• Your classroom trainer, or the developer of an online program, needs to be  a true expert in harassment prevention. A generic training background is not enough, and a quick “primer” on harassment issues won’t prep someone for this role. Remember that in the event of litigation, these trainers and developers may be deposed or even spend time on the witness stand.
  
• Two hours of e-learning means a program that cannot be completed in less than 2 hours. Practically speaking, this means your training program needs: (1) a timer that requires learners who complete in less than 2 hours to view additional content until the 2 hour threshold is met, or (2) required media elements that cannot be completed in less than 2 hours.
  
• Training content can go beyond sexual harassment to include other protected categories, such as race and religion. Time spent on these other areas counts toward to the two-hour standard.
  
• Training records must be documented and kept for a minimum of 2 years.
  
• Training programs must cover the elements of an employer’s harassment policy and how to handle complaints.
  
• Retraining Must be Calendared Using Individual Tracking. Employers must track training for each supervisor measured two years from the date of the completion of the last training for that individual. The December 2005 regulations permitted "Training Year" tracking, which allowed employers to designate a "training year" in which to train supervisors. Under the old regulations, the employer could then retrain supervisors by the end of the next training year. The practical impact is that supervisors trained in early ’05 need to be trained in early ’07 versus the end of ’07. That moves the training deadline up for employers who started AB 1825 training efforts early in 2005.

If you would like to participate in the final public comment period, you have until July 20. For details on how to submit comments, go to the FEHC harassment regulations website. 

A final note of caution. In an effort to beef up their sales efforts, some training vendors claim to have “assisted” the FEHC in drafting the regs and as such, offer the “inside scoop” on the regulatory process. These are companies who are positioning their participation in the public AB 1825 hearings (anyone could attend and testify– see my previous posts from Feb ‘06) as equivalent to serving as the FEHC’s right hand in the regulatory process. It’s a stretch, to say the least.

It’s also an interesting move for companies whose businesses are based on ethics and compliance.