United States: The Future Of Anti-Harassment Training And Shifting Workplace Culture In The Era Of #Metoo, #Blacklivesmatter, And Others

In the wake of the #MeToo movement, there has been considerable buzz surrounding workplace culture.  For many employers, simply satisfying basic legal requirements is a thing of the past.  The future, instead, is focused on creating and fostering a workplace culture of respect and inclusion.  Over the next several weeks, we will review what it means to transform a workplace culture, what initiatives work and don't work, and what employers who want to "go the extra mile" can and should be thinking about.

In this post, particularly in light of recent legislative developments, we will focus on anti-harassment training.  Some states like Connecticut, California, and Maine have, for some time now, required that certain employers provide anti-harassment training for supervisors.  New York State recently upped the ante and passed legislation mandating all employers to provide annual anti-sexual harassment training to all employees.  Shortly thereafter, New York City also passed legislation mandating annual anti-sexual harassment training for employers with 15 or more employees.  Beyond basic legal compliance, however, how can employers design trainings that are effective tools for preventing harassment?

EEOC Report

Indeed, in June 2016, the Equal Employment Opportunity Commission ("EEOC") issued a report regarding harassment in the workplace.  In that report, the EEOC observed that, over the last several years, anti-harassment training has generally not been a successful prevention tool.  Rather, training has been too focused simply on avoiding legal liability.  Nevertheless, and despite its shortcomings, the EEOC concluded that training is still an essential element of an overall anti-harassment effort and can be an effective prevention tool.  Among the EEOC's key conclusions, therefore, is that anti-harassment training must change. 

The EEOC observed that the most effective anti-harassment trainings are those that are part of a holistic effort to prevent and combat workplace harassment.  In other words, in order to be effective, training cannot stand on its own.  Senior leadership must be truly committed and the organization must allocate sufficient resources to its anti-harassment initiatives.  Further, the most effective anti-harassment trainings are those that are live, interactive, offered to all employees, and tailored to the specific workforce and workplace.  Trainings should also be offered regularly—rather than once in an employee's career—and routinely evaluated.  It is also critical that middle-managers and first-line supervisors are properly trained to prevent, identify, and stop workplace harassment.  Importantly, while the report focused primarily on sexual harassment, the EEOC was clear that employees should be trained on all forms of harassment, not just sexual harassment.

EEOC Training Tips

The EEOC found that, in order to increase effectiveness, anti-harassment trainings should contain certain components.  For example, training should:

  • Provide examples about what forms of conduct are not acceptable in the workplace.  Importantly, the conduct discussed should not be limited only to conduct that is unlawful.  Rather, the training should describe conduct that is simply unacceptable in the workplace and, if left unchecked, might rise to the level of illegal harassment.  To have a real impact on employees, these examples should be tailored to the specific workplace and workplace.
  • Clarify employees' rights and responsibilities if they witness or experience unacceptable conduct.  Specifically, the training should clarify the ways in which employees who witness or experience harassment can report the incident, and explain how the formal complaint and investigation process will proceed. 
  • Explain that the employer will keep the investigation and complaint as confidential as possible and ensure that those who report having experienced or witnessed harassment will not be retaliated against.
  • State the consequences of engaging in unacceptable workplace conduct, including that corrective action will be proportionate to the severity of the conduct.

Further, middle and first-line managers should receive even more robust training.  In order for an organization to prevent harassment before it starts, managers must understand that they are accountable.  They must also be educated on methods for dealing with harassment that they observe, that is reported to them, or of which they have knowledge or information (even if there is no formal complaint).  Managers should also be instructed on how to report harassing behavior further up in the organization.

Employers who are considering additional ways to go above and beyond might also consider conducting training in multiple languages, depending on their workforce, and/or offering new models of training, such as bystander intervention training or workplace civility training.  Bystander training aims to give employees the tools to recognize potentially problematic behavior, motivate them to step in and take action when they observe problematic behavior, and empower them to intervene when appropriate.  Civility training does not focus on eliminating unwelcome behavior based on characteristics protected under employment non-discrimination laws, but rather on generally promoting respect in the workplace.

New York's Revised Training

The drafters of the New York State and New York City legislation appear to have been cognizant of the criticism of existing training programs and considered the EEOC's recommendations when drafting the new laws.  As a result, the New York State and New York City laws setting forth the requirements for anti-sexual harassment training are now among the most comprehensive in the country.  Notably, however, both the New York State and New York City trainings requirements are limited to anti-sexual harassment training.

Specifically, the New York State law, which goes into effect on October 9, 2018, requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention training program.  Every employer must either adopt the model training program or establish a training program that equals or exceeds the minimum standards provided by the model.

The law includes the following requirements that the training: (i) be interactive; (ii) provide an explanation of sexual harassment; (iii) provide examples of conduct constituting unlawful sexual harassment; (iv) provide information concerning the federal and state laws and remedies available to victims of sexual harassment; (v) provide information concerning employees' rights of redress and all available forums for adjudicating complaints; and (vi) address conduct and responsibilities for supervisors.  

NYC-Specific Requirements

The New York City law, which goes into effect on April 1, 2019, requires covered employers to conduct annual, interactive anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees.  In order to help employers meet this mandate, the New York City Commission on Human Rights is tasked with creating and posting on its website an online, interactive training module. 

Similar to the State law, the City law requires that the training be "interactive."  While the law does not require that the training be live, it must qualify as participatory teaching "whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program, or other participatory forms of training as determined by the commission."

The City law also requires that the training must include the following: (1) an explanation of sexual harassment as a form of unlawful discrimination under city, state, and federal law; (2) a description of sexual harassment, including examples; (3) the employer's internal complaint process as well as the complaint process available through the City Commission on Human Rights, the State Division of Human Rights, and the Equal Employment Opportunity Commission; (4) a prohibition of retaliation and examples of what constitutes retaliation; (5) information concerning bystander intervention; and (6) the responsibilities of and actions that must be taken by supervisory and managerial employees in the prevention of sexual harassment and retaliation. 

While it is not yet known what the impact of the new training requirements will be, the passage of the New York State and City laws suggest that more comprehensive training programs, which take into consideration the EEOC's recommendations, are the way of the future.  Thus, while employers with employees in New York State or New York City will have to comply with the mandatory training requirements, these new laws provide an opportunity for employers nationally to take stock of their existing training programs and consider whether they want to go above and beyond what the law may require. 

For example, although the New York State and City laws require only anti-sexual harassment trainings, employers should consider conducting annual training that does not focus exclusively on sexual harassment, but rather covers all forms of harassment, discrimination, and retaliation.  Additionally, employers in other states may want to utilize New York's model training programs.  For employers with employees in New York as well as other states without mandatory training laws, they may want to consider expanding the training to all employees and tailoring it to each state or municipality in which they operate.  Finally, for employers that do institute a training program (whether required or voluntarily), they will need to consider whether to expand the training to include more novel training models, such as bystander intervention training and work place civility training.  

As we move toward a future more focused on creating a positive and inclusive workplace, rather than just complying with the law, employers should review their existing trainings and consider whether and how they could be more effective for their specific workforce and workplace.  And, of course, employers without existing training programs should consider making training a requirement. But, as noted above, training cannot stand on its own.  It must be part of a holistic anti-harassment effort, with robust policies and procedures and committed senior leadership. 

Originally published by FUTURE EMPLOYER - August 6, 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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