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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Loren Gesinsky
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
Constangy, Brooks, Smith & Prophete, LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Schnader Harrison Segal & Lewis LLP
Constangy, Brooks, Smith & Prophete, LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions