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

I was recently asked by Fox News here in San Francisco, to comment on the ramifications of Mayor Gavin Newsom’s confirmed workplace affair. (Mike Mibach Reports On Possible Legal Ramifications of Newsom Affair). What immediately came to mind was the volatile nature of sex and work, and how an inappropriate romance can go far beyond legal liability to jeopardize so much – careers, reputation and the trust of colleagues and the public. All of this comes into play, even when you’re dealing with two consenting adults. 

Consider the 2005 sex scandal involving Boeing ex-CEO, Harry Stonecipher. When the Board of Directors discovered that he was having a consensual affair with a married female executive, he was forced to resign.  And the resignation had nothing to do with alleged sexual harassment, or a violation of the anti-harassment policy and its rules about dating in the workplace.  It came down to ethics.  From the Board’s perspective, the relationship violated the organization’s Code of Conduct (that Stonecipher wrote) and called into question his judgment and ability to lead others. (See the Washington Post: Boeing CEO Resigns Over Affair With Subordinate).  It’s never a good thing when the boss ignores the organization’s rules.  If it is wrong for some, it should be wrong for everyone—even those at the top.

So how will a similar situation play out for Newsom? 

Last week, the Mayor made a startling public announcement, confirming an affair with Ruby Rippey-Tourk.  The relationship began while she was working as his appointments secretary.  Not only was she a subordinate, but she was also married to Newsom’s campaign manager.  In a twist on the standard story, Newsom’s sex scandal involved betraying a close friend and trusted advisor. In the wake of the announcement, Newsom has become the subject of nationwide news coverage and fodder for bloggers. While most seem likely to excuse the affair, what people are really concerned about is the Mayor’s apparent lack of judgment.

Along with so many other workplace sex scandals, the Newsom situation highlights an emerging trend—the intersection of traditional business ethics and workplace harassment principles.  Relationships between employees are no longer just about sexual harassment risk—although this remains a concern.  Today, an office romance (especially one involving the boss) is just as likely to be viewed as a major lapse of judgment and a potential violation of an organization’s Code of Conduct.  The relationships create unacceptable conflicts of interest and expose the organization to unnecessary legal and business risks.

To make things even more complicated, the leaders typically charged with enforcing anti-harassment policies often believe that the rules don’t apply to them.  Some are in positions of immense power and feel impervious.  Others feel they already give so much of their lives to their jobs, that their personal choices are nobody’s business – especially when the relationship involves two consenting adults.  After all, the more you achieve, and the further you invest in career, where else are you going to meet people?  (In full disclosure, I must admit that I met my husband at our old law firm, keeping an office romance quiet for several months.  Nobody frowns upon it now, because we ended up getting married and moved onto different jobs.  Even still, at the beginning of the relationship, we were the subject of a lot of nasty gossip and rumors that I can’t say thrilled me.)

When a scandal runs to the top of the house, the damage can be widespread. The organization can be exposed to sexual harassment litigation --  including claims of economic and environmental harassment.  This is especially true when the relationship ends, and things take a turn for the worse.  People can argue they are being treated differently as a result of the affair – ranging from a claim that the work environment has become hostile, to a more serious claim that someone has lost something of tangible economic value (a promotion, a raise etc.) as a result of the break up. 

And then there’s the latest in harassment liability -- sexual favoritism.  In 2005, California’s Supreme Court ruled that office affairs (even consensual ones) can create liability if others perceive that the only way to get ahead is to sleep with the boss.  That means that even if nothing goes wrong with the consenting relationship, liability may arise from colleagues who find out about it, and feel that it’s inappropriate and creates an unfair advantage.

The bottom line? Organizations can no longer view business ethics and EEO practices as two distinct concerns. Rather, the intersection of these disciplines demands a unified and comprehensive approach to ethics and harassment training. While it may seem obvious that sex with a subordinate is a bad idea, this concept is not universally understood by your employees.  If I’ve learned one thing in this business, it’s that nothing is “obvious” or “common sense.”  At the same time, employees demand a high level of integrity and honesty from management.

Establishing a culture of trust is no easy task for employers. A culture of trust engenders loyalty, retention and best of all, productivity.  Transparency is certainly a critical part of establishing a great culture—but as recent scandals demonstrate, it’s also critical to find leaders who are willing to live by the rules they enforce.

To Newsom’s credit, his public apology was exemplary.  He took full accountability for the situation, acknowledged the damage that had been caused, and focused on the need to regain the trust of the city, and his staff.  (My guess is that as a result, the affair will do little to damage his re-election campaign, or his extraordinary approval rating in the city of San Francisco.)  Other public figures could take a page out of his book when faced with a high profile scandal.

And the next step for the city?  Ensuring that all employees understand the sexual harassment policy, and receive appropriate, high quality education on its practical implications. (Words in a policy mean nothing if they cannot be brought to life.)  Aside from the Newsom scandal, under the new California sexual harassment training standards, training is mandatory for all supervisory city employees.

A few months back, I wrote a post regarding the State of Illinois’ ethics training debacle. In short, thousands of training certifications were yanked because employees were able to blast through the State’s online course too quickly. (The training program was purchased through an external vendor.) Some employees spent less than 10 minutes completing the State’s annual ethics training, which requires 58,000 employees to review approximately 80 screens, including five “self help” questions, and an end-of-course quiz. (See State Employees Able to Blast Through Vendor’s Online Compliance Training – Completion Certifications Invalidated.) 

Obviously, this is hardly the result an employer is looking for when it invests significant time and resources in an online ethics training program.  

But the plot has thickened …

Yesterday, two tenured professors from Southern Illinois University at Carbondale (SIUC) filed a lawsuit to protest the requirement that they take supplemental training, or risk losing their jobs. The mathematics profs (Marvin Zemen and Walter Wallis), two of the many thousands of state employees who completed ethics training too quickly, are crying foul. According to Zemen, who serves as President of the SIUC Faculty Association, “"I believe that taking the additional training and signing the certification would be an admission that I was non-compliant, though I was not. It would be unethical for me to sign this document."

Zemen and Wallis are arguing that the training invalidations cannot be supported “solely on the basis of some unspecified time.” Commenting on SIUC’c training, program, Zemen is arguing that “…it's ludicrous to suggest that highly educated people cannot grasp, within a few minutes, the nuances of a document prepared by a subcontractor hired by a state bureaucrat."

It may seem ludicrous, but the professors’ jobs are on the line.

“It's almost comical, until you realize I could be fired as a result of this capricious action," Zemen said.

And so ensued the lawsuit, which seeks to bar the Inspector General from imposing a minimum time that employees must spend on ethics training. The suit would also bar the State from imposing discipline on employees who fail to take a minimum time to complete the online course.

Doesn’t this make you glad the issue of training time is crystal clear under California’s sexual harassment training regulations? The Fair Employment Housing Commission has taken a firm stand. Training must take no less than two hours to complete. Period.

And there are lessons to be learned here, that go beyond Illinois’ ethics training, as well as the sexual harassment training standards in CA:

• Training programs on important compliance issues shouldn’t be a few minutes in length. (Isn’t this common sense?) Anything less than 30 minutes starts to look suspect – to regulators, to judges and to juries.
• A training program designed to be 30 mins, 60 mins, 180 mins – whatever – needs to contain sufficient content and interactivity that makes those “estimated” times real. Don’t be fooled by program specifications and slick marketing collateral. Ask vendors about their user testing stats regarding average completion time. Then do some of your own spot checking. It’s worth the investment of time, especially if you’re rolling out an online ethics training or harassment training program to hundreds or thousands of employees.
• Make sure the program is of a high quality, using realistic scenarios and hypotheticals. Screens of boring text followed by a “mini quiz” is what causes situations like the one we’re seeing in Illinois.
• If employees can blast through the training quickly, they will. It’s human nature.
  

 

In the world of employment law, things are always evolving, changing, and adapting. Issues that were hot 10 years ago aren't necessarily at the at top of the list anymore. And if your training is based on trends from 10 years ago, it may not be doing enough to protect your organization. 

So when it comes to discrimination and harassment training, what is hot right now? What should your organization be incorporating into its training programs?

The EEOC recently released its charge statistics for FY 2006. (EEOC Enforcement Statistics And Litigation) These stats give employers (and plaintiff’s lawyers) insight into what is going on in the employment law world, and give us a peek into the American workplace.

Let’s get the dry stuff out of the way. After years of declining overall charge numbers, the EEOC reported the first up-tick in filings—although very slight—since 2002. Charge filings with the EEOC (and state agencies with work sharing agreements) peaked in 2002 at 84,442, and declined to a low of 75,428 charges filed in 2005. It looked like we were on course for a steady and continuing decline in EEO charges. This decline can be largely attributed to increased employer commitment to training, and better employer policies. 

In this past year (FY 2006), however, charge filings ticked up slightly (by 340) to a total of 75,768 charges. While a small increase in filings isn't alarming, digging deeper into the numbers reveals something interesting about EEO law trends.

The most notable trends that I'm tracking right now include:

PREGNANCY DISCRIMIINATION ON THE RISE: Sex discrimination numbers have historically hovered around 24,000-25,000 charges per year. This includes charges for sex discrimination, sex harassment, and pregnancy discrimination combined. In recent years, the filings have dipped to a low of 23,094.

Even though the overall numbers have declined, pregnancy discrimination charges have increased by 23% during the past decade. They actually reached their peak in 2006 at 4,901 charges. To top it off, the EEOC has actively pursued some high profile pregnancy discrimination cases. (Philadelphia Retailer Announces Company-Wide Discrimination Training and Innovative "Secret Shopping" Program).

What doesn’t mix well is employers who don’t "get it" (pregnancy discrimination is against the law) and women in the workforce who do "get it", and who need to keep their jobs.  Adding to the phenomenon is the fact that the US scores rather poorly on a global scale vis-à-vis family-friendly workplaces. When American women compare themselves to women in other industrialized countries, they may be more inclined to fight for the limited rights they've been granted. (U.S. Lags In Family-Friendly Workplaces: Study Shows U.S. Companies Far Behind Other Nations In Maternity Leave, Sick Days).

NATIONAL ORGIN & RACE – A MUST WATCH: The other area employers must continue to watch is national origin and race discrimination. National origin discrimination charges have been on the rise in the past decade, increasing by 24%. As we look to the future, our workplaces will be impacted by major demographic shifts and increased globalization. In addition, Generation Y and Generation Next will be joining our workplaces.  By all accounts these generations are more diverse, and more accepting (and expectant) of diversity. Whether they'll be willing to speak-up and speak out—and how they will choose to do it—will be worth watching. (Judy WoodRuff's PBS Documentary--Generation  Next. Speak Up. Be Heard.)

BIGGER & BIGGER & BIGGER: The EEOC has been active on the litigation front. They see litigation as an important tool for educating employers and correcting problems. During the past several years, the EEOC has filed between 400 and 421 suits per year. But what's critical is the EEOC’s stated intent—they are looking for and taking cases to court that have a broad impact on the workplace. (EEOC FY 2006 Performance and Accountability Report).

This trend of bigger is better is reflected in the recent decision to uphold the largest ever employment law class certification—up to 1.6 million former and current female Wal-Mart managers. (9th Circuit Opinion Upholding Class Certification). Contemplating the potential damages for such an action is staggering.

Employers must now be mindful that decisions that were once viewed as purely individual manager actions (and thus not appropriate for class certification) may still land an employer in class action hot water if the facts are right. So what should employers expect? That plaintiffs’ attorneys will attempt to copy this approach in cases we once thought were not amendable to class certification.  At a minimum, class certification creates nice leverage for settlement.

Best advice? Make sure that your training program is sophisticated enough (and updated enough) to address the current issues and trends. As the world of employment law changes, adapts, and evolves so must your organization’s approach to training. Failing to do so can leave your employees under-trained and your organization exposed to unnecessary legal risk.

A new revision of the FEHC regulations supersedes the content of this post. View the latest AB 1825 information.

Today, California’s Fair Employment & Housing Commission (FEHC) adopted revisions to the state’s AB 1825 sexual harassment training regulations.  The revisions are designed to address changes requested by the Office of Administrative Law (OAL), which rejected the FEHC’s November 2006 regulations approximately three weeks ago.

You can read the full text of the revised AB 1825 regulations here. There will be a public comment period starting tomorrow (February 28) and ending on March 14.

The purpose of this post is to help you understand these revisions, and their practical impact on employers. The substantive changes are limited entirely to defining expertise requirements for training. There are no changes to required training content, approved methodologies (e-learning, classroom, webinars) or requirements for tracking and calendaring training. (An overview of all the AB 1825 regulations is available here.)

Understanding the Critical Roles – Instructional Designers, SMEs and Trainers

To understand the OAL change requests and the FEHC revisions, it helps to understand how training is developed.

Typically, whatever the form of training (e-learning, classroom or webinar), an instructional designer works with a subject matter expert to develop the basic training materials.

An instructional designer is a training professional who knows how to design an effective learning experience. A subject matter expert is just that—someone who knows a lot about a particular subject.
Finally, in classroom training or webinars, there is the trainer…the person who actually delivers the material and facilitates the session. This distinction illustrates an important recognition by the FEHC that experts don’t necessarily make good course designers or teachers.

Unfortunately, this wasn’t well expressed in the November 2006 regulations submitted to the OAL, whose job it is to check for consistency and clarity. They had two substantive objections:

(1) The criteria for who would qualify as either a “trainer or educator” or as a “Subject Matter Expert” were not sufficiently specific; and

(2) It was unclear exactly how someone could be a “qualified trainer” without also being a “Subject Matter Expert”.

The other issues raised by the OAL are simply format related. (The full text of the OAL letter can be found here.)

New Expertise Definitions

In response, the FEHC’s new AB 1825 regulations clarify the criteria for being a “Subject Matter Expert” and a “trainer or educator.” The definition of “instructional designer” is unchanged.

Briefly, anyone who is a “trainer or educator” will need to have three years of experience designing and conducting discrimination, retaliation and sexual harassment training programs.

The criteria for qualifying as a "Subject Matter Expert” are much more specific and stringent than before:

1. Attorneys, admitted for three or more years to the bar of any state in the US, whose practice includes employment law; or

2. Certified Human Resources Professionals (by SHRM or via a higher certification) with three years practical experience involving discrimination, retaliation and sexual harassment (e.g. providing training, conducting investigations, responding to complaints or advising employers); or

3. Professors and instructors in law schools, colleges or universities with three or more years teaching experience about employment discrimination laws (or 25 instruction hours); or

4. Individual consultants with three or more years of experience providing professional advice about discrimination, retaliation and sexual harassment.

Expertise and Type of Training

Classroom training and webinar training must use the same types of expertise. The materials must be developed by a Subject Matter Expert and be delivered by a trainer or educator.

Under the regulations, it is possible to be a “trainer or educator” without being a Subject Matter Expert, and vice-versa. So … you might have a SME developing content for training, but s/he does not conduct that actual training session. You might also have a trainer conducting a classroom or webinar session, but s/he does not meet the qualifications of a SME.

The critical issue in the latter scenario is: Who is going to answer questions from trainees?

The revised regulations allow for questions asked in a classroom or webinar training session to be answered after the session by a SME within 2 business days—exactly parallel to the requirement for e-learning. Even though this is a possibility, most organizations who are using classroom training or webinars will want to ensure that the person delivering the training is also a Subject Matter Expert. It’s just more efficient.

E-learning must be developed by an instructional designer in conjunction with an SME. The program must provide a mechanism for learners to connect to a Subject Matter Expert for any questions that arise, and those questions must be responded to within two business days. Note that this is a change from the previous version of the regulations which specified that questions needed to be routed to a “trainer or educator.”

What Does this All Mean Practically?

These requested changes delay the effective date of the regulations to April or May of this year. Remember, however, that the requirement to provide two hours of effective training remains—AB 1825 itself is still in effect. Most employers are up against a December 31, 2007 training deadline.

It is worth taking note, however, of the more stringent requirements that are being placed on who can develop and deliver training programs. You should take steps to ensure that the individuals involved in your training plan—whether internal or external—have adequate credentials and experience.

While the particular definitions may change over the next few weeks during the public comment period, the message from the FEHC is clear—they want to ensure that AB 1825 training is created and conducted by experienced professionals, and that organizations are not just “checking the box.”

The best advice is to be working with people who have been doing harassment and discrimination training long before AB 1825 was passed.