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

The San Francisco Chronicle recently reported that workplace harassment training is paying off. The Chronicle is not alone. According to the EEOC, the number of harassment claims has dropped by 20% since 1997.

According to experts cited by the Chronicle, training has led to a decline in claims for two reasons. First, training gives managers and employees a better understanding of what constitutes appropriate behavior and sends the message that inappropriate conduct will not be tolerated. The chairman of ELT’s Board of Directors, Garry Mathiason, was quoted as saying:

“In 90% of cases, when the violators are clearly told the behavior is not tolerated, it will stop. But when that message is not communicated, that’s when the thing escalates.”

Second, training empowers employees by giving them information on what to do if they feel they have been harassed or faced discrimination. As the founder of Stanford University’s Sexual Harassment Policy Office noted:

“The training gives employees the sense that there is an office where help is available, where they can consult ‘off the record’ and that is incredibly important.” 

On the flip side, training also delivers an important message to managers – many of whom do not realize that they can be held personally liable for harassing or discriminatory conduct. That means managers engaging in wrongful conduct are putting their own assets at risk – not just the assets of their employer.

One recent case in the news brings all this together. 

The case involved Alarm One. One of the company’s employees brought a harassment claim after being spanked in a “team building” exercise. Hard to believe any manager in this day and age would create a team building program involving spanking – but they did.

Though the supervisors involved had received sexual harassment training, the employee was ignored when she later complained about the incident. The obvious conclusion? The training was ineffective and the company blew off the complaint. 

The result? The jury awarded $1.7 million in damages. The company must pay $1.6 million, and the two supervisors involved must pay $50,000 each. And this result is not far off the average. While in 1994 the average harassment jury award was $141,000, today it's $1 million (according to a recent report by the Insurance Coverage Litigation Reporter and Business Wire).

The take away lessons:

1. Training works. It is an effective risk management tool that is lowering the number of claims every day.
   
2. Your choice in training is incredibly important. It must be designed to give employees quality information, encourage employees to report problems, and bring home the message to managers that complaints must be taken seriously. That means using a highly interactive, engaging program that actually has the power to change behavior.

Here’s the bottom line: Experienced medical malpractice lawyers will tell you that doctors don’t get sued by patients who just have bad outcomes. They get sued by patients who are mad – most often about the way they have been treated, and how their concerns were addressed.

The same is true in employment cases. Training is an effective way to manage risk, and to put a stake in the sand in terms of what your company expects from its employees and managers. It works.

But you can’t just talk a good game in the training program. Your response to real world complaints must be consistent with the ideals and standards in your training program. A disconnect between training and practice can make plaintiffs angrier and destroy the tangible benefits training can deliver.

A recent lawsuit filed against Starbucks by the EEOC serves as a reminder that high profile workplace discrimination claims are not limited to sexual harassment.

The suit alleges that Starbucks knew the plaintiff had psychiatric disorders when they hired her.  Store managers initially accommodated the employee's needs by giving her extra time to learn drinks and being supportive.  Then, a new manager was brought in.  That's when things took a turn for the worse.  The manager allegedly lowered the employee's hours, berated her in front of customers and eventually fired her.

One of the biggest training errors that I see employers make is to actually carve out critical content on race, age, disability, national origin and sexual orientation to ensure more robust treatment of sexual harassment.  I call it the dreaded “silo syndrome.”

Why is this such a big mistake?  Well, you just have to pay attention to the numbers (and live in reality.)  According to the EEOC's most recent stats, discrimination 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%

As workforces age and diversify, you can expect to see further differentiation in claim type – and increased liability in areas beyond sex discrimination.  And when it comes to disability, be sure to address both physical and mental conditions.  As evidenced by the Starbuck’s case, there is a growing number of lawsuits and claims associated with mental disabilities.  This is a topic your supervisors may not know much about.  If they are in California, the stakes are even higher given the elevated state protections that go beyond those offered by the American’s with Disabilities Act.

So make sure your training programs cover a broad range of protected categories.  Avoid the silo syndrome, which will not only create legal risk at your organization – but will also send the message to your workforce that you aren’t paying attention to (or worse, don’t care about) other critical discrimination issues.

I have spent the last 2 days at the SumTotal Annual User Conference. Clients and prospective clients of the LMS provider gathered in San Jose to learn more about business solutions, industry  challenges and the hottest developments in learning management system (LMS) technology. 

The conference featured a focused "Compliance Track," where attendees could get quickly up-to-speed on regulatory and legal requirements, as well as how e-learning programs and LMS technology can provide effective, low cost solutions for all aspects of compliance, from tracking and reporting to competency mapping and ROI analysis.

During my discussions at the conference, I was struck by an ongoing theme when it came to enterprise compliance training. Almost every organization I spoke to is either currently providing extensive harassment and ethics training or planning to in 2007. These areas are identified as the two most important compliance training topics impacting all employees, across multiple industries. One learning professional at a well-known technology company indicated that compulsory ethics code of conduct training makes up more than 50% of total compliance training volume at her company mainly because it is the only course that goes to all employees and is mandated from the CEO down.

These are trends I am seeing every day at ELT - and why as a company, we are focusing our efforts on those topics that employers need and use the most. (View my presentation on ethics and harassment training at the SumTotal conference.) Over the past few years, there has been a marked departure from the "library approach" to compliance training. HR, legal, ethics and learning professionals are recognizing the watered-down quality that comes with a volume-based approach, not to mention the poor usage rate on the majority of the training courses purchased.

Another trend emphasized at the conference? Fewer organizations are interested in building compliance solutions in house. I spoke to an HR /Org Development professional who detailed his organization's attempting to provide basic employment law solutions to supervisors. A solution was built internally in 2001, taking one year longer than planned, and coming in more than 50% over budget. Then, in 2004, the company discovered its internal program was non compliant with the new AB 1825 California standards because it was too short, and did not feature enough interactivity. (The company had several thousand CA-based employees.) As a band-aid fix, the organization did an expensive retrofit to the course to meet a December 2005 deadline, but has now committed to outsourcing a training solution for 2007.

Because ethics and harassment training require intensive subject matter expertise, and both have periodic re-training requirements, more and more companies are recognizing the efficacy of using an outside vendor to supply their solutions. The expectation, however, is that the training programs will be of the highest quality, and offer fresh content to employees who must take programs every one or two years.

The biggest reason behind the push for outsourcing?Internal training departments are uncomfortable with the scrutiny being placed upon the content and methodology of compliance e-learning.Better to allow a vendor's subject matter experts and attorneys to be cross examined or deposed about those training programs. It's what they're set up to do.