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

Most employers who invest in online discrimination and harassment training are driven by compliance – especially in California where AB 1825 has introduced the most sweeping sexual harassment training directive in the country. Under federal standards, training has been strongly encouraged since 1998. 

But the other side of the coin is true ROI in the event of litigation.  Will a training program hold up in court, and help to lower liability as well as damages? In some instances, training can even help to absolve a company of liability altogether. That’s the much bigger payoff, and something that HR, legal and ethics professionals should be paying attention to when assessing or building programs.

But the big question remains -- how do you know whether a training program will really be able to offer the protection you need in the future? Can you “test the armor” so to speak, in the initial evaluation stages of a discrimination training program?

I say you can. 

The first step is obvious. Do your due diligence and really look under the hood. Ensure that the program has the best content providers, and that it is continually audited and updated for compliance with state and federal standards. Also ask yourself how it would play in front of a jury. For example, is it a high quality, realistic and interactive program that shows the organization is taking things seriously, or is it a “bare bones” course driven by text and low-end media? (Take note: cartoons, 80’s “print shop” quality graphics, and photos that look like they were shot with a cell phone camera don’t exactly put your best foot forward.)

The second step is to see whether the training has held its ground in a court or other formal administrative proceedings. A great resource in this respect is independent EEOC review of a vendor’s training programs in association with a formal consent decree.

At ELT, we recently went through this process when our discrimination training program was approved by the U.S. District Court for the Eastern District of Pennsylvania as part of a consent decree in a high profile national origin discrimination case. The courseware went under the intense scrutiny of the EEOC in a very public proceeding. We got the thumbs up.

So in short, now you have another question to ask when evaluating a training program: “Have your courses ever been independently reviewed in a formal legal proceeding?”

Given the maturation of our industry, and the number of vendors with significant client lists, the answer should be “yes.”

If you pay any attention to EEOC charge statistics, you can sometimes predict the Commission’s next big move. And if you’re in the wrong place at the wrong time, your organization may become the EEOC’s next target. 

That’s just what happened to Mothers Work Inc., a leading designer, manufacturer, and retailer of maternity fashions in the United States. Some of their brands include Mimi Maternity, A Pea in the Pod and MaternityMall.com. The EEOC’s Miami District Office filed suit against Mothers Work alleging that the company illegally failed to hire pregnant women and retaliated against one who complained about alleged discrimination. 

It’s hard to imagine something more upsetting and damaging than a high profile employment lawsuit that tarnishes your corporate image, and has the potential to alienate your core client and employee base. The President of Mothers Work, Rebecca Matthias, said it best—she was “shocked and upset” by the allegations and “horrified” that someone who was employed by her organization felt the victim of discrimination. Not surprisingly the organization settled the claims for “business reasons” to the tune of $375,000.

To Matthias, the solution was clear—put the lawsuit behind her and focus on the future. How will she do it? While the EEOC demanded training for Florida-based employees, Matthias plans to go further.  She has promised to extend discrimination training to her entire workforce. It’s a bold and wise move that goes beyond compliance with the EEOC’s three-year consent decree, and shows commitment to organization-wide education and prevention. And Matthias isn’t just investing in good PR – her decision will ultimately prevent lawsuits and save the organization bottom line dollars.

The nationwide discrimination training will be combined with a first-of-its-kind secret shopping program.  Last week, Matthias announced “a new and innovative fair employment auditing system to help assure fair treatment of all applicants and staff[.] This program includes a Mothers Work-created program of 'secret applicant' employment interviews by an independent third party to help detect and prevent discrimination, as well as nationwide continued training. 'Secret shoppers' are used by many retailers to measure customer service but, to our knowledge, this is the first time 'secret applicants' have been used to detect potential discrimination."

Mothers Work is in a tough position. They are now under the scrutiny of the EEOC, the courts, the media, their customers and their employees. As they actually follow through on these sweeping promises, their next steps must be carefully planned. In today’s tough legal environment, it’s no longer good enough to provide “check-the-box” training.  The programs that Mothers Work chooses must be comprehensive and effective. 

So what should Mothers Work and other organizations look for in a discrimination and harassment training program? Here are some critical questions to help start the process:

• Does the program adequately cover all forms of protected category discrimination? Implementing a program that doesn’t will leave your organization exposed. (A worrisome trend among organizations focused on California’s AB 1825 is to train only on sexual harassment, mistakenly interpreting the state’s training law to exclude other important forms of harassment prevention such as race, disability and pregnancy.)

• Does your program reinforce important organization values? The training program should serve two purposes—educating employees about harassment and discrimination, and reinforcing the core values of your organization. 

• Can your program survive the rigorous scrutiny of an EEOC review? Selecting a vendor with a proven track record can help put your mind at ease. The content should come from a reputable legal provider, and as importantly, be consistently audited and updated.

• If you are choosing an online solution, does the program feature high quality instructional design? A “page-turner” program, that amounts to little more than a self-directed PowerPoint presentation is not enough, and can actually do damage in terms of the message you are sending to employees, and potentially, to a jury. A recent article on sexual harassment training in the SF Examiner stresses some key considerations.

The trend of employers embracing extensive discrimination training programs continues to gain momentum. My recommendation? Embrace the trend early – and develop critical protections for your organization before they are potentially court ordered.

In the last 24 months, the law of training has gone through a major overhaul. For years, employers relied only on their best judgment to determine if homegrown discrimination and harassment training programs were good enough to stand up to scrutiny from the courts or the EEOC. It was virtually impossible to find case law or statutory guidance that really detailed specific training expectations. 

Today, employers across the country can look to California’s AB 1825. California was the first state to provide employers with real guidance about what constitutes effective EEO and harassment training.  In essence, it has demanded robust legal content and excellent instructional design. Shaped by experts in the field of employment law and training (such as ELT and Littler Mendelson who assisted the state of California in drafting AB 1825’s regulations), the law sets national expectations.

A good indication of AB 1825’s national impact?  Recent EEOC consent decrees, which detail discrimination and harassment training mandates.

Just last week, the EEOC settled a lawsuit against Hampton Inn (Hagerstown, MD).  Similar to the Mother’s Work settlement from just a few weeks ago, it involved a pregnancy discrimination lawsuit. An employee sued Hampton Inn alleging that the hotel manager withdrew an offer of employment after realizing she was about four months pregnant. Hampton Inn settled for $45,000.

In keeping with the California training trend, the consent decree mandates training for all employees -- two hours for managers and one hour for employees -- both to have a special focus on sex and pregnancy discrimination.  The two hour requirement is not coincidental – it is the training length standard set by AB 1825. 

While many employers outside of California balk at 2 full hours dedicated to harassment prevention education, there is a clear trend of court and EEOC ordered training requiring lengthy programs.  The big picture result? A domino effect in terms of the general expectation placed upon employers.  I personally see more and more clients committing to the 2-hour training standard for supervisors outside of California.  Aside from realizing that the AB 1825 standards are likely to impact them in the event of future litigation, there is also a commitment to providing a single, consistent training program across the organization.  It is too cumbersome, and frankly, too risky, to provide a robust 2-hour program in California, and a “pared down” program in other states.  How do you explain the difference to employees – or to a jury?

As I continue to monitor EEOC consent decrees, jury verdicts, and legislative developments across the country, it is clear that the effects of California’s AB 1825 will be widespread. Sarah Reyes, author of California’s training law, has also commented repeatedly that legislators in several other states have contacted her for assistance in crafting similar laws.

Employers located outside California should take a long and hard look at California’s training requirements. Even if these standards have yet to be adopted by your state, they are likely to impact your organization. Whether you receive a charge of discrimination, or are sued in court, it is highly likely that the AB 1825 standards will impact how your case is evaluated, and possibly resolved. 

Implementing an AB 1825 compliant program today will save your organization time and money in the long run.

This past week in Florida, the trial of Joy Williams began. Prosecutors allege that Williams, a former Coca-Cola employee, conspired to sell sensitive trade secretes to arch rival, Pepsi Co. Williams’ transgression could land her in prison for up to 10 years if she is convicted.

The case has some valuable lessons vis-à-vis ethics and compliance training.

Caught by the FBI with documents and unreleased product samples in her home, Williams now alleges that her (convicted) co-conspirators tricked her into sharing the information. Her lawyer’s take on the case is that her client was taken advantage of and that she “did not take any documents she believed to be trade secrets to share with these people or to harm Coke and benefit Pepsi, nor did she intentionally knowingly give them any documents."

Williams was not a top executive, a critical R&D team member, or part of a secret team testing new products. She was a trusted administrative assistant to Coca-Cola’s global brand director. Her position gave her access to trade secrets vital to Coca-Cola. This combination of trust and access created a tempting situation and an opportunity for her to allegedly engage in illegal conduct.

What’s interesting about this situation is how the scheme was discovered. Employees at Pepsi Co. didn’t bite when offered the information, and it was Pepsi that reported the matter to Coca-Cola.  Had the Pepsi employees taken the information, Pepsi could have found itself in some very hot water as well. Instead, Pepsi employees did the right thing when presented with a true ethical dilemma – the goal of all organizations striving to create ethical cultures.

For Coke, the situation was a little different. Coke had to re-evaluate its control procedures and its general counsel issued a memo to all employees asking them to report any suspected violations or other inappropriate conduct.

This case highlights a couple of important things about ethics and compliance training:

• First, if she is telling the truth, Williams was lacking information that was essential to her role. She obviously needed basic trade secret, ethics, and confidentiality training. Maybe if she understood the importance of proprietary information and trade secrets, and had a better grasp on her obligation to keep them secret, the situation could have been avoided.

• Second, Pepsi employees clearly had a solid understanding about some critical compliance issues (confidentiality and proprietary information), as well as the company’s ethics and compliance program (identifying and reporting suspected misconduct). Training is undoubtedly the best way to get this message out to your employees. In this case, “doing the right thing” kept Pepsi out of legal trouble.

• Third, employees must be told to report suspected misconduct. You may assume that they know this very fundamental concept—but they don’t. Training that covers reporting is a critical part of creating an ethical culture.

• Fourth, organizations cannot overlook entry-level employees when they think about ethics and compliance training target audiences. Just like senior executives, and employees in R&D, almost every employee has access to very sensitive information.  If they don’t understand the rules, it’s hard to ensure they’ll put ethics into action.

Today, the Office of Administrative Law (OAL) requested changes to the AB 1825 regulations adopted by California’s Fair Employment & Housing Commission (FEHC) on November 14, 2006.  A letter detailing the OAL’s change requests will be public next week.  I will of course post the details to this blog, and further information will be available at www.elt-inc.com. 

So the obvious question on everyone’s minds – Are substantial changes being requested to these laboriously vetted regs?

The short and simple answer is no.

According to the FEHC, which received a courtesy call from the OAL prior to today’s public announcement, the change requests are focused on refining definitions as they relate to subject matter expertise.  

The current regs require that “Subject Matter Experts” who provide content for training programs, and who may actually conduct live training programs, have"legal education coupled with practical experience, or substantial practical experience in training in harassment, discrimination and retaliation prevention."  (More details on the current sexual harassment training regulations.) The OAL wants the definition of who is a “Subject Matter Expert” to be even clearer.  That means we will be getting more detail about two components – what specifically qualifies as “legal education” (e.g. a JD?  A certain number of years in legal practice?), and what specifically is required to have “substantial practical experience.” (e.g. a certain number of years of training experience?)

Over the next several weeks, the FEHC will be working diligently with the OAL to refine the Subject Matter Expertise definitions, and adopt new final regulations.  The regulations will be effective some time in the spring of 2007.

Overall, this is a positive development. It will further curb the growing “cottage industry” of self proclaimed harassment training specialists who are devoid of true expertise.  

The substance of the regs is not changing, so employers who are underway in planning and deploying their 2007 training can simply stay the course and proceed with confidence.

Where employers need to be even more careful, however, is erring on the side of caution when it comes to scrutinizing the expertise of their training resources – whether internal or external.  The more detailed regs are likely to be even more specific and stringent about the level of qualification and experience required to either conduct live training programs, or to build e-learning programs.  As HR, legal, ethics and training professionals, you should be asking even tougher questions about the true subject matter expertise of your training provider.

While the FEHC and the OAL sort out this last minor detail with the AB 1825 regs, let common sense prevail.  Just ask yourself the following questions: “Would I be comfortable with the developer of my online training program, or my live trainer, being cross examined in court about actual credentials and practical experience.”  If you hesitate in answering that question, you may need to rethink your AB 1825 strategy.  

Some quick practical suggestions:

• Avoid “Train the Trainer” programs where you rely on a single workshop to provide expertise to in-house trainers.  Expertise cannot be created in a few short hours.
• With online training programs, ask to see detailed information about the background and credentials of course developers. (Hopefully, it’s more than 1 or 2 people.) Then ask for certifications or warranties about the actual involvement of these people in creating and updating an e-learning program.
• With live training programs, carefully review the background and practical experience of your presenter.  Can s/he truly answer questions from the audience vs. being reliant on a course outline and script?

At the end of the day, you need real experts handling your sexual harassment training.