ADVERTISEMENT

    Harassment Training FAQs: What, Why & How Often

    Some form of harassment training is one part of a long-standing three-part set of best practices for minimizing harassment-related liability. Use these Q&As to think about whether your company is positioned as well as you can be with your training (or to get started if you haven’t).  

    ADVERTISEMENT

    What are the other two parts? The easiest is a good harassment policy – most employers get this at least very close to right with minimal efforts and expense. Probably the most important liability avoidance part is promptly and adequately responding to harassment concerns when they are raised. More on each of those in future posts. Now to training:

    Q: Is harassment training required?

    Not in Ohio, but in some states such as California it is required of many employers. So it is another one of the increasing number of employment law subject areas where the employer needs to be mindful of requirements in any jurisdiction in which it has employees, which may even include a state where you have only somebody working remotely.

    But even if your company or organization is not subject to any of those state-specific training requirements, it is a routine expectation of employers and it would certainly not be helpful in defending a harassment-related claim not to be able to demonstrate that the employer is doing something to train employees about harassment issues.

    Q: What should harassment training consist of?

    To me, this depends somewhat on the reason for the training. There are two reasons to conduct harassment training – one is to minimize potential harassment liability, the other is because you don’t want your employees to be harassed. Hopefully you share both objectives! I believe there are overlapping but different strategies that go along with the two objectives.

    It is relatively easy to “check the box” that you have conducted training for liability prevention purposes.  You know the videos that all seem to be variations of the creepy male boss looming over the seated female assistant with his hand on her shoulder? Or a PowerPoint presentation with a lawyer or HR leader reading you a lot of legal details? Whether you learned much or not from those, those should work should fine as long as you can prove your employees did it – i.e. make employees sign in, whether that’s virtual or in-person. But the quality of training probably will not be highly scrutinized by judges, juries and government investigators as long as it somewhat reasonable from somebody reasonably qualified.

    But one thing #MeToo reinforced for us is that, no matter how good your policy is and how good you are at responding to complaints, you are not completely preventing all harassment with the customary three-part strategy because victims often don’t complain. As that becomes more widely recognized, the expectations of employers to do better at finding uncomplained-of harassment may increase.

    So I encourage employers to get away from the traditional videos and lectures with a particular focus on tying to root out unreported harassment – more interaction, more focus on how to handle bystander and other real life scenarios and less lecture on legal details, perhaps shorter but more frequent training so it is always closer to top of mind. In part, just by making training better so fewer employees view as an HR-imposed burden. However you do it, recognize the fundamental issue of unreported harassment and go about tackling that in new and creative ways.

    Q: Does everybody get the same training?

    You can probably check the liability prevention box by giving everybody the same training. I think it is most effective, though, to have two separate tracks – one for supervisory/managerial employees and one for those who are not. The programs can be very similar. But for the people who are not supervisory, the core message is “the employer wants to hear about these issues and is committed to addressing them when they arise” as strongly as you can. For the supervisors, there is certainly that message (supervisors can certainly be victims too), but the core message is “it will be extremely bad for your employment status here if you do anything we are telling you not to do in this training or fail to inform the company of any such issues you observe.”

    Q: How often should we train?

    As noted above, I think a reimagined training program where harassment is part of the conversation on an ongoing basis is most effective. That said, for now at least it is advisable for liability prevention purposes to also maintain a somewhat traditional harassment training program (though hopefully still interactive and fresh and interesting). Except in some of those jurisdictions mentioned at the very beginning, there is no rule or formula for this. Two years is a good minimum benchmark and most judges and juries would think so too. In environments where there have been prior issues, more is advisable for at least a couple of years until it seems clear any problems have been cleaned up.  

    No set of answers fits every employer of course, but these Q&A should give you some ideas to discuss with your legal and HR advisors to make a training plan that minimizes your potential liability and gives your team an appropriate and productive workplace.

    This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

    Barnes & Thornburg LLP is a national, Midwestern-based business law firm that strives for a more entrepreneurial and cost-effective approach both to client service and its own business. Read more Metropreneurial Legal Insights.

    ADVERTISEMENT

    Subscribe

    More to Explore:

    The Case of the $112 Million Tainted Peanut Butter Insurance

    Insurance policy disputes can often come down to a...

    What’s Going On Out There With Noncompetes? Catching Up in 6 Parts

    Plug “noncompete” agreements into your search engine and you...

    How Can You Best Prevent Employee Lawsuits?

    Clients often ask – usually it’s when they are...
    Bill Nolan
    Bill Nolan
    Bill Nolan has practiced law in Columbus since 1989. Bill Nolan serves as managing partner of Barnes & Thornburg's Ohio office, which he opened in 2009 and has guided through steady and thoughtful growth. Bill works to bring attentiveness and clarity to bear on employment, contract and other disputes, but is most passionate about helping clients build teams, policies and processes to minimize the frequency, cost and severity of disputes.
    ADVERTISEMENT