In the wake of recent attention to sexual harassment in the workplace, employers and members of the public are asking: what about all of those sexual harassment trainings we required? Are they helping? How do we know? And, if they’re not achieving our goals (public policy and agency-specific), what can we do better?
Just What Training is Legally Mandated?
As California public sector employers are well-aware, Assembly Bill 1825, adopted in 2004, began requiring California employers with 50 or more employees, as well as all state employers, employers that are political or civil subdivisions of the state, and city employers, to provide sexual harassment prevention training and education to all supervisory employees. In accordance with AB 1825’s basic requirements, employers are required to provide two hours of training to supervisory employees every two years (and within six months of becoming employed as a supervisor). The training must be “classroom” or other “effective interactive training and education,” and it must address information and practical guidance regarding federal and state law concerning the prohibition against and the prevention and correction of sexual harassment; the remedies available to victims of sexual harassment in employment; and practical examples to instruct supervisors in the prevention of harassment, discrimination, and retaliation.
In recent years, harassment prevention training requirements in the state of California have been expanded. In 2014, the AB 1825 training requirement was updated by AB 2053 to require education on the prevention of “abusive conduct” in the workplace – conduct that a reasonable person would find hostile or offensive, but not related to a person’s protected status (i.e. not necessarily related to a person’s sex or gender). Effective January 1, 2017, following the sexual harassment scandal involving the Mayor of San Diego, and other high-profile cases involving elected officials, the legislature adopted a new law (AB 1661), requiring sexual harassment prevention training and education for members of local legislative bodies and elected officials for local agencies – the training and education is required if any compensation, salary, or stipend is provided to any member of the legislative body or the elected official. Most recently, in October this year, Senate Bill 396 was passed, requiring the AB 1825 training to include a training component inclusive of harassment based on gender identity, gender expression, and sexual orientation. Notably, from its outset, AB 1825 set forth a “minimum threshold” for training requirements. Employers could, and still may, set a longer, more frequent, or more elaborate training and education program regarding workplace harassment or other forms of unlawful discrimination.
But Does it Work?
In June 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) published a report, the Study of Harassment in the Workplace, which addressed whether training is effective in preventing harassment. To assess whether training is effective, the EEOC analyzed numerous studies conducted by research institutions, social scientists, and employers. In a study of federal government employees, the EEOC learned that “participation in training was associated with an increased probability, particularly for men, of considering unwanted sexual gestures, remarks, touching, and pressure for dates to be a form of sexual harassment.” However, the EEOC also learned that while training’s have a positive impact on knowledge acquisition, they are less likely, on their own, to have a significant impact on changing attitudes, and can have the opposite effect. A common theme that developed in the EEOC’s research was that “effective training does not occur within a vacuum.”
As a result of its Study, the EEOC came to two conclusions: (1) empirical data to date does not permit the EEOC to make a declarative statement about whether training, standing alone, is or is not an effective tool in preventing harassment, but (2) empirical deficiencies aside, practical and anecdotal evidence from employers and trainers led the EEOC to conclude that training is an essential component of an anti-harassment effort. However, the EEOC notes, “to be effective in stopping harassment, such training cannot stand alone but rather must be part of a holistic effort undertaken by the employer to prevent harassment that includes elements of leadership and accountability.” (Emphasis added.)
Where Do We Go From Here?
Recent widely read news reports, targets of harassment speaking out, and perpetrators admitting to misconduct have demonstrated that sexual harassment cannot go unattended. There is something we can do about it!
Overwhelmingly, the EEOC recommends that workplace trainings address not only what the law requires, but also organizational culture. It suggests trainings that speak to workplace civility generally, and potentially, bystander intervention. Workplace civility training is aimed not only at eliminating unwelcome behavior based on characteristics protected under employment non-discrimination laws, but on promoting respect and civility in the workplace broadly. Civility training is focused on what employees and managers should do, rather than should not do, in the workplace. Bystander training is designed to create awareness, a sense of “collective responsibility,” and a sense of empowerment, and to provide intervention resources for those who are not comfortable (or safe) taking action in the moment. It has largely been used in addressing violence and in the education context by Department of Education guidance prompting students to intervene in preventing sexual assault. The EEOC opines that such training could also be effective in the workplace.
In addition to insuring effective training content and training modules, the EEOC notes that successful training requires:
- Support at the highest levels, demonstrating that leadership is serious about preventing harassment in the workplace;
- Repetition and reinforcement on a regular basis to demonstrate an employer’s commitment to training efforts; not just once a year, or once every other year, but at regularly scheduled events in which key information is reinforced;
- Qualified, live, and interactive trainers who are dynamic, engaging, and have full command of the subject matter; and
- Routine training evaluation to determine whether training changed employee behaviors or behaviors employees observe in the workplace.
Notably, the EEOC’s research was not limited to California, and many EEOC recommendations for a holistic training approach are incorporated into California’s legal training mandates, and Department of Fair Employment and Housing (“DFEH”) regulations and publications. For example, the DFEH Workplace Harassment Guide for Employers provides that an effective anti-harassment program (i.e. something more than just training) includes:
- Clear and easy to understand written policy, distributed to employees and discussed at meetings on a regular basis – e.g. every six months;
- Buy-in from the top! This means that management should be the role model for appropriate workplace behavior, understand policies, and walk the walk and talk the talk;
- Supervisor and management training required by law (AB 1825 training);
- Specialized training for complaint handlers;
- Policies and procedures for responding to and investigating complaints;
- Prompt, thorough, and fair investigations of complaints; and
- Prompt and fair remedial action.
With respect to training content, DFEH Regulations set forth three learning objectives: (1) assisting California employers in changing or modifying workplace behaviors that create or contribute to “sexual harassment”; (2) providing trainees with information related to the negative effects of abusive conduct in the workplace; and (3) developing, fostering, and encouraging a set of values in supervisory employees who complete mandated training that will assist them in preventing and effectively responding to incidents of sexual harassment, and implementing mechanisms to promptly address and correct wrongful behavior.
The DFEH also requires that trainers who provide legally mandated training be attorneys admitted for two or more years to the bar; human resources professionals or harassment prevention consultants with a minimum of two or more years of practical experience; or professors or instructors in law schools, colleges, or universities who have a post-graduate degree or California teaching credential with either twenty instruction hours, or two or more years of law school, college, or university teaching experience regarding employment law under the FEHA and/or Title VII of the Civil Rights Act. It is important for trainers to have a clear understanding of legal requirements, and DFEH training regulations, so that training content also complies with the specified, required elements set forth in California.
While an employer can rely on the law to instruct its actions; at the end of the day, it is not just what your agency “says,” but what it “does” that will set the appropriate tone and emphasis on preventing workplace harassment, and promoting workplace civility.
As many of our readers are already aware, LCW frequently provides trainings with highly experienced trainers in the area of preventing workplace harassment, discrimination, retaliation, and abusive conduct. We look forward to bringing you updated training materials and presentations in 2018.