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

At some point in your career, you’ve undoubtedly come across someone who thinks that sexual harassment training is a bad idea. Why? They believe that training will actually fuel employees to file lawsuits.  Better to keep workers in the dark about the harassment policy and their legal rights.  Ignorance, the theory goes, is bliss.

Fear of increased litigation is a powerful motivator. But failing to train is actually what creates more (not less) risk for an organization.

For those of you who’ve been stymied by this “fear of training” argument, you now have some very powerful ammunition.  A recent study (released today by American University’s Kogod School of Business) concludes that sexual harassment training does not invite lawsuits. While not a surprising result for most of us, it’s nice to confirm what gut and experience have taught us.

Study Concludes Good Sexual Harassment Training Should Increase Employee Awareness

No doubt, harassment training increases employee awareness. In fact, this is one of the key purposes of training. And yes, in some cases, an organization may see an increase in the number of internal employee complaints that are made – but this is a good thing. It means that your employees paid attention to the training and trust you enough to handle issues that are already brewing.  (Better to catch them now before they spiral out of control.)

What employees really want is to be treated with respect, and for their issues to be taken seriously. They don’t want to sue. If you handle the awareness and response components right, it’s the best way to reduce harassment-related litigation.

Harassment Training Is Critical Evidence If You Are Sued

If an employee does sue the organization after training, you’ll be in a much better legal position if you’ve actually conducted high quality training. Without it, your organization may have a difficult time mounting even a basic defense to the claim. Harassment and discrimination training has become such an expected business practice, it’s become very difficult for employers to explain why they don’t have it (especially with the lower cost and expansive reach of interactive online training).

Training Mandates Are Here To Stay – Case in Point: The Failure of AB 1501

Don’t make the mistake of failing to provide comprehensive harassment education, especially if you have employees in states that actually mandate sexual harassment training like California, Connecticut and Maine. (See ELT’s 50-State Harassment Training Survey)

And recognize in particular that California’s AB 1825 mandates are not just here to stay – they’re influencing the rest of the nation.

Even though California’s sexual harassment training regulations have been through the ringer a couple times now (yes, it has been painful), the core training standards are finalized, and pending final approval with the Office of Administrative Law. (See AB 1825 Sexual Harassment Training Regs Adopted Without Further Changes). 

Recent attempts to whittle down the AB 1825 regs (like eliminating the need for employers to ensure that employees spend at least 2 hours in an e-learning program) have failed miserably. (Check out AB 1501 and CA Assembly Labor and Employment Committee bill analysis and defeat). Support for the AB 1825 timing mandates goes all the way to the top in California, with Governor Schwarzenegger firmly supporting a 2-hour requirement. 

When it comes to sexual harassment training, the California standard is establishing the baseline for all employers. And the California law is designed to make employers do the right thing – to invest in prevention – with the genuine belief that training will actually reduce incidents, and lower litigation costs.  Today’s Kogod study just underscores the wisdom of that legislative design.

Sex and work just don’t mix well – and when office romances turn sour, careers and reputations have a tendency to unravel.
 

There’s been a lot to blog about lately on this topic – San Francisco Mayor Gavin Newsome (The Mayor Newsome Affair – Legal and Sexual Harassment Training Implications) and of course soon-to-be former President of the World Bank, Paul Wolfowitz (Men and Women View Sexual Harassment Differently: The Power Divide).

Newsome headed off to rehab and has stayed mostly under the radar.  Wolfowitz held out a long time there, but finally caved and resigned.  Awarding his girlfriend a hefty pay increase was just too much to overcome, and like many other sex-in-the-workplace scandals, his transgression was couched as a violation of the Code of Conduct. (See NYTimes.com: Wolfowitz Resigns, Ending Long Fight At World Bank).

These high profile office romances are no longer just about the sexual harassment policy (or any accompanying sexual harassment training programs.)  They’re about ethics.

Case In Point: David Colby, Former WellPoint CFO

Ethics and traditional sexual harassment have collided head-on – and David Colby, former CFO of WellPoint, served up a shining example this week.  I mean this one is just packed to the rafters with dirt.

On one side there are movie deals, elaborate cover-up stories, and lovers strewn about the country.  On the other side is a well-respected company dealing with investor scrutiny and questions about integrity and ethics. And in the middle of it all is one man, who appears to have some serious issues.

The Wall Street Journal describes Colby as having a “complicated personal life.”  Boy – that’s an understatement.  He appears to have been leading a double life, with “secret” families in at least two different locations, accessorizing the arrangement with plenty of other girlfriends stationed around the country.  And it’s reported that one of Colby’s romances involved a WellPoint employee.

Colby’s Personal Life Catches Up With Him

Until recently, Colby’s coworkers didn’t question his complicated personal life – that is, until it started to impact WellPoint’s reputation.  Colby was asked to resign on May 30, despite years of extremely strong performance. I’m not sure what got the ball rolling – but it may have been a lawsuit filed against Colby by a scorned lover, and the subpoena she served on WellPoint for records. (See Bloomberg.com article).

While WellPoint has been tight lipped about the actual reason they let Colby go, the company did say that an investigation revealed a violation of WellPoint’s Code of Conduct. (See CNNmoney.com article). WellPoint's employment agreement with Colby also provides that his employment can be terminated if he engages in "conduct which tends to bring us into substantial public disgrace or disrepute."

Polygamy, shameless office romance, and all around deception?  Yup – I’d say that qualifies.

Sexual Harassment and Misconduct Viewed As An Ethical Lapse and Code Violation

More and more employers are treating sexual misconduct and sexual harassment as a violation of their Code of Conduct, and not just as a violation of their harassment policy. Employers have connected the dots – sexual harassment is a more than just an HR issue. High-level resignations involving sexual misconduct are frequently couched in terms of Code violations, loss of confidence in leadership ability, and demonstrated poor judgment.  Stellar performers can’t just hide behind their qualifications to save their jobs.

Ethics & Sexual Harassment Training Are No Longer Luxuries – They’re Musts

Employers today are expected to periodically train all employees on ethics and legal compliance.  (For the legal basics, check out: Legal Drivers for Mandatory Harassment, Discrimination, and Ethics Training).  And most Codes now include a prohibited harassment policy. As a result, harassment training has become a standard component of ethics and code of conduct and training. 

And while it’s vital to address harassment issues as part of ethics and code training, sexual harassment training should be taken a step further. 

Why?  Well first, it’s about probability.  Just peruse the federal and state statistics on discrimination claims.  Harassment is so pervasive, it’s likely to be the most common form of Code violation that your employees engage in.  Second, harassment is a complex topic with a lot of gray areas. Men and women tend to view harassment differently, and your employees are human – attraction and desire can lead to some very inappropriate workplace conduct.  You need some robust, interactive education on the topic.

If you want to protect your organization, insist on dual coverage for this critical topic. Your code training should address harassment and discrimination, but you shouldn’t stop there. Harassment training should also be offered to all employees as a stand-alone program.  This approach isn’t just a good idea – it’s actually required in multiple states.  (See ELT’s 50-state sexual harassment training survey.) 

Oh – and don’t forget to train your execs, and the Board.  These guys (and gals) are some of the absolute worst transgressors.  Their ethical missteps also tend to land you on the front page of the newspaper.

On Thursday, June 21, 2007, the United States Supreme Court handed down an important decision (Rita v. U.S., 06-5754) that should make all employers take note. The case involved the reasonableness of a 33-month prison sentence imposed on a criminal defendant under the Federal Sentencing Guidelines (FSGs). The prison sentence fell within the range established by the FSGs.

The Court held that an appellate court, considering the appropriateness of a prison sentence, can apply a presumption of reasonableness to the sentence if it falls within the guidelines established by the FSGs. Prior to this ruling, a sentence could be reversed if it was deemed unreasonable by an appellate court. 

The practical effect of this decision is that criminal defendants (even employers held liable for the criminal acts of their employees) will have great difficulty getting a prison sentence overturned on appeal if the sentence falls within the FSG guidelines. (See Associated Press Article: Court Backs Rules Governing Prison Terms). Most federal sentences fall within the guidelines.

Why This Ruling Matters For Your Organization

The FSGs are rules that set out a uniform sentencing policy for convicted defendants, including corporate and organizational defendants. They apply to all types of employers – public, private, government, non profit etc. Critical amendments to the FSGs in November of 2004 mandated periodic ethics training for all employees. (See ELT’s Summary of Ethics and Code of Conduct Training Mandates).

The FSGs make clear that employers can be held liable for their employees' illegal conduct. And now, if those sentences fall within the guidelines, they will be deemed presumptively reasonable on appeal.

Ethics and Compliance Training: The Best Way To Manage Risk

In light of Supreme Court’s decision in Rita, organizations should be taking a long, hard look at their ethics and compliance training initiatives – and their overall awareness and understanding of the guidelines. Under the FSGs, if an organization has taken proactive steps to prevent unethical and illegal conduct through an effective ethics and compliance program (which includes periodic, formalized training), the employer may be able to mitigate potential fines and punishment for criminal violations by up to 95%. Aside from providing organizations with some peace of mind, training provides a secondary and more important benefit – a cultural shift toward enhanced ethical values and behavior.

At the end of the day, these seemingly technical decisions remind us of an important truth.  Even without laws, affirmative defenses and valuable risk mitigation, smart employers will engage in effective ethics and compliance training because it makes good business sense. 

The workplace is a whole lot different than it was just a few decades ago. There are more double income families – not necessarily by choice, but often for survival. More Americans are taking on elder care responsibilities. More men are taking time off to care for children, and using employer policies once “reserved” for females. And without a doubt there are more women (and mothers) in the workforce today. 

Along with these shifts,  we’ve seen the expression of some powerful negative stereotypes and old-school cultural norms, which tend to butt heads with the needs and realities of the contemporary American workforce.

Not surprisingly, a new employment law trend has emerged – Family Responsibility Discrimination.  FRD has found its way into mainstream discrimination discussions, and is an important new topic to cover in discrimination and harassment training.  Most significantly, the EEOC issued guidance on FRD in late May of 2007. (See EEOC Guidance on FRD).  The EEOC didn’t create a new cause of action or expand existing statues – but its guidance has brought attention and legitimacy to this issue.

What Is FRD?

FRD is basically discrimination against employees because of their caregiving responsibilities at home. The term is broad enough to include people who care for children, and those who care for parents. It includes both men and women, and employees of all ages, education levels, and protected categories.

Family responsibility discrimination cases are brought under a variety of different statutes such as Title VII, the Family & Medical Leave Act (FMLA), and the Pregnancy Discrimination Act.

And claims arise under a wide variety of circumstances, but generally involve an employment decision based on an employee’s real or perceived family responsibilities, or stereotypes about motherhood or masculinity. Claims are typically classified as sex or gender discrimination claims.

FRD claims also arise when an employee is discriminated or retaliated against for taking family leave under FMLA or similar state statutes. (Check out the EEOC Guidance on FRD for specific examples).

Employers Should Take Note. FRD Cases Are On The Rise.

The number of FRD cases is on the rise. The Hasting College of Law Worklife Center has been tracking FRD cases for decades and reports that claims have risen from 97 cases in 1996 to 481 in 2005.  During a period when discrimination claims overall have been dropping, FRD cases have increased at an astonishing rate of 400%. (See HRhero.com article Family Responsibility Discrimination).

And plaintiffs win these cases 50% of the time – a much higher rate than for other forms of employment discrimination litigation. The issues tend to resonate well with jurors. And the verdicts are big. For a summary of some of the larger and more notable recent cases check out this recent National Law Journal article at Law.com on FRD.

Training is Key

Conduct giving rise to FRD claims is often based on attitudes and personal beliefs. Your employees often don’t understand that it’s not okay to express negative feelings about motherhood and family care responsibilities. Off-hand statements and snap judgments based on stereotypes are the bread and butter of these claims.  

The most critical first step for employers is to raise awareness in their workplace about conduct that can result in FRD claims.  Your training need not deal exclusively with FRD issues, but EEO and harassment training should teach managers:

• About the impact of stereotypes in the workplace, and inappropriate comments relating to family responsibilities.

• How to interpret and apply policies in a fair and consistent manner, without regard to gender or family responsibilities.

• To base employment decisions on objective performance and job criteria, not stereotypes and assumptions.

• How to spot and respond effectively to FRD claims.  Managers in particular need to avoid discounting a claim, or making offensive statements while speaking with an employee about an FRD issue.

FRD is an emerging trend that all organizations should watch. In today’s marketplace, being a truly family-friendly workplace often makes the difference for prospective candidates, and it has a major impact on employee retention.  Having “family friendly” policies is not enough. You need to establish a culture that supports and embraces the values behind the policies.