Sexual harassment training is no longer a luxury utilized only by those employers who wish to be, or appear, proactive in an effort to promote a positive workplace. Since the Supreme Court's landmark decisions in the 1998 Faragher and Ellerth sexual harassment cases, subsequent court decisions and EEOC Guidelines have demonstrated that sexual harassment training is essential and is not to be viewed as something to be dismissed or taken lightly.
Should there be a need to raise a defense or avoid punitive damages in sexual harassment lawsuits, employers need to demonstrate that they have provided periodic sexual harassment training to all employees. Additionally, courts and the EEOC guidelines also have made clear that sexual harassment training should address not merely sexual harassment but all forms of unlawful harassment in the workplace.
Is sexual harassment strictly a women's issue? Would you, as an employer, avoid providing training because it was not required by law in your state? Moreover, is that the only area of discrimination for employer cause and concern simply because it is the law? Certainly not! Here are some statistics for consideration:
While approximately 15,000 sexual harassment cases are brought to the EEOC each year, this makes up only 22% of all harassment claims. Further, the number of harassment claims filed by men has more than tripled in the last few years, and approximately 11% of claims involve men filing complaints against female supervisors.
The remaining 78% of the claims involve harassment based on one of the other protected categories including: race, color, religion, Sex (pregnancy or gender), sexual orientation, marital status, National origin (including language restrictions), Ancestry, Disability (mental and physical, including HIV and AIDS), Medical condition (cancer/genetic characteristics), Age (40 and above), Denial of Family and medical care leave, Denial of pregnancy disability leave or reasonable accommodation).
What can employers do right now to safeguard their business?
1.Ensure that a business wide policy is in place and that all employees are familiar with the company zero tolerance policy.
2.Fully comply with the requirements of this new law.
3. Provide training that not only complies, but also actually changes employee behavior to prevent costly and avoidable harassment claims in this, and the other prescribed protective classes.
4.Include managers, supervisors, and all other employees in your training program. Ensure that employees know what to do in case they need to file a complaint or concern and keep communication lines open.
5. While employers with less than 50 employees are not yet legally required to provide such training in some states in the United States, implementing a program and doing so may help to substantially reduce legal exposure and liability dramatically. It is therefore, recommended that ALL employers (even with less than 50 employees) arrange for workplace harassment training!
6. All claims of harassment must be taken seriously and thoroughly investigated. Naturally, there may be some situations when it is clear that the behavior did not violate the employer's policy even if it upset the complaining party. It is your obligation to ensure you are maintaining vigilance regarding those employees in your workplace.
Employers cannot plead ignorance about being liable for sexual harassment by a manager or supervisor. It is your responsibility to familiarize yourself with the rules pursuant to your state and respond accordingly.
Failing to properly train your staff can result in punitive damage charges by demonstrating "reckless disregard" for the Fair Employment and Housing Act in California, the EEOC on the federal level and all of the pertinent laws in your individual state.
For those of you have provided this training, remember it is considered a minimum threshold, only. Train, reinforce, retrain, and walk the walk of your zero tolerance policy for discriminatory practices in your workplace.
Author Jamie Charter has been providing employment and litigation consulting services for 23 years through Charter and Company Employer Resource Consultants in Soquel, California. Jamie is certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE) . Ms. Charter is also an accomplished writer and editor, with many published articles in employment related issues in wide-reaching media arenas.
Jamie Charter, consultant, trainer and author, has been providing employment and litigation consulting services for 23 years through Charter and Company employment resource consultants in Soquel, California. Areas of specialization include development and implementation of disability management programs, case management, EEOC/FEHA/ADA consultation, return-to-work facilitation, CalPers job description services, job analyses, conducting training seminars for employer groups on sexual harassment prevention and discrimination and litigation /expert witness services in Forensics.