A Patchwork of State Sexual Harassment Training Requirements

Robin Shea, partner with leading national labor and employment law firm (and ThinkHR strategic employment law partner) Constangy, Brooks, Smith & Prophete, LLP asks if it’s time for a “Uniform Harassment Training Act.”

New York State and New York City have enacted laws that require employers to provide sexual harassment training, joining California, Connecticut, and Maine. Contangy’s Steven Stecker has an excellent summary of the New York laws here. The New York State training requirements will take effect October 9, 2018, and the New York City requirements will take effect April 1, 2019.

If you think the New Yorks will be the last, think again. I’m betting that state and local sexual harassment training laws are the wave of the future.

Which wouldn’t be such a bad thing, except that it is a pain having all of these different requirements, especially if you’re trying to conduct harassment training for a group from different parts of the country.

For some reason, sales reps from Illinois and Oklahoma just aren’t that into the fact that you can get a cease-and-desist order against your sexual harasser in the State of Connecticut.

And, in one multi-state harassment training session I conducted, we were on a tight schedule and had to skip bathroom breaks so that the attendees from California would be sure to get their full mandatory two hours. (You were allowed to walk out when nature called — but only if you were from Alabama.)

For the other 46 states that will are likely to be enacting sexual harassment training laws in the not-too-distant future, I have some requests:

• Mandate “harassment” training, not just “sexual harassment” training. Employers shouldn’t be legally encouraged to give short shrift to other forms of harassment, such as racial, national origin, disability-based, age-based, and religious. All harassment is bad and illegal, and the employer ought to be able to cover it all. Without having to turn the session into a marathon.
• If, like the State of New York, you are going to require harassment training for all employers regardless of size, make it easy and free for the mom-and-pops. (I would legally define any employer with fewer than 15 employees as a “mom-and-pop.”) Tiny businesses may not be able to afford a private HR consultant, much less a lawyer. Even computer-based programs can be expensive. If you’re going to impose these legal mandates on the smallest employers, then create a government entity that conducts harassment training free of charge for tiny employers and their employees. Offer it during times when their businesses are not in operation. Give the little guy a chance to comply.
• Don’t require the trainers to waste time reciting legalese to their employees. (Connecticut and Maine, I’m talking to you.) The legal definitions of sexual harassment are incomprehensible to normal people, and probably even to some lawyers.
• I understand why California would want to make sure the training was sufficiently thorough, but employers should have discretion to determine how much time is really necessary. (In California’s defense, though, its law applies only to employers with 50 or more employees, and training is legally mandated only for management.)

On a more positive note, here are some things that I like about many of these laws and think would be good to include in a federal harassment training law or my proposed “UHTA”:

• Require that the training be interactive (not necessarily a live instructor, but some sort of “virtual” give-and-take).
• Require use of examples
• Tell employees how to register a complaint of harassment.
• (Needless to say) Tell supervisors, managers, executives, and the Board of Directors what to do if they get a complaint of harassment or become aware of harassment.
• Require a component on retaliation
• Don’t actually require that employers keep documentation of employee training, like New York City is going to do, but let there be a rebuttable presumption that if the employer doesn’t have the documentation, the employee didn’t get the training. This will encourage employers to keep records, but if the employer has no records, it will be able to provide other evidence to show that the employee got the training.

New York City’s law will require training on bystander reporting and intervention, which the Equal Employment Opportunity Commission recommended in its proposed Enforcement Guidance on harassment. In my own harassment training, I have always encouraged employees to report harassment of which they become aware, even if they aren’t the victims themselves. I do think it’s a good idea for employers to encourage employees to report workplace harassment if they see it occurring, and to intervene when they feel that it’s appropriate and that they can do so safely.

Training Time

ThinkHR’s harassment training courses have been updated to incorporate California and other state standards. ThinkHR customers can log into platform to access these online courses, along with a full library of titles.