Risk Managers Fear Workplace Training Traps

These inquiries highlight important issues for employers. As a result of a series of U.S. Supreme Court decisions beginning in 1998 and culminating in 2004 (Faragher vs. City of Boca Raton, Ellerth vs. Burlington Industries, Kolstad vs. American Dental Association, and Suders vs. Pennsylvania State Police), workplace training on EPL-related topics is more important than ever before.

In addition, effective on Jan. 1, California became the third state to enact legislation requiring mandatory anti-harassment training for managerial personnel. AB 1825 requires employers of 50 or more to provide at least two hours of training to managers on sexual harassment issues including its identification, how to respond to employee complaints, and how to comply with an employer's obligations to investigate, assess and remediate sexual harassment problems on an annual basis.

This company also has operations in one of the other two states (Connecticut and Maine) with laws requiring anti-harassment training of managerial personnel.

At a bare minimum, therefore, the company is required by statute to provide workplace training to its supervisory personnel in California and Connecticut. While the mandatory workplace training laws do not create an additional cause of action for plaintiffs who sue for sexual harassment in circumstances where a company fails to conduct training, evidence of an employer's failure to comply with these training laws would be key in supporting a claim for punitive damages.

The series of U.S. Supreme Court rulings do not make workplace training mandatory. A failure to invest in workplace training, however, essentially hamstrings an employer in defending itself in employment-related litigation. The Supreme Court's rulings create a series of affirmative defenses both to liability and for damages mitigation where an employer undertakes good faith efforts to create an employment practices compliance program consisting of state-of-the-art HR policies and protocols backed up by annual workplace training programs for managerial personnel.

The key to demonstrating good faith efforts is designing and implementing a workable training program, which equips managerial personnel to enforce the employer's anti-discrimination policies and respond appropriately if an employee complains of an alleged violation of the anti-discrimination/anti-harassment policies of the company. As a result, companies of all types and varieties have substantially enhanced their workplace training programs to take advantage of the liability- and damages-limiting aspects of the U.S. Supreme Courts rulings.

While no one training program is a "one-size-fit-all" solution for every employer, an effective training program must address the appropriate topics, communicate them effectively, and include as participants key managerial personnel for which liability can be visited upon a company if the supervisor fails to address a problem appropriately.

Topics to be addressed in any effective training program include:

The company's key policies on anti-discrimination, anti-harassment, and internal complaint procedures and protocols.

Legal obligations of an employer and its managerial personnel when it comes to prevention of discrimination and harassment in the workplace.

Types of behavior that violate the employer's policies prohibiting discrimination, harassment and retaliation in the workplace.

Obligations and responsibilities of managerial personnel in responding to employee complaints of discrimination, harassment and retaliation.

Internal employee complaint investigation and, if necessary, remediation for a safe and respectful workplace.

Generally speaking, these topics can be addressed in training sessions of 60-to-120 minutes. California AB 1825 specifies a mandatory two-hour training program, but the essential test is reasonableness and practicality: the training should be long enough to teach the core concepts on the key topics. By and large, the training needs to be effectively delivered so that the essential attributes of the company's employment practices compliance program are disseminated to those who need to know.

Training materials also must be completely transparent. In subsequent litigation, the company needs to be prepared to exhibit proof regarding the training program to establish its affirmative defense. Therefore, written materials encompassing the training, names of the individuals who attended the training session, and information on trainers must be documented and recorded with an eye toward possible use of those records in a litigation context.

Selection of trainers is another item of concern. The three state laws on mandatory training and the developing case law in federal courts do not speak to selection of trainers with any specificity (other than the obvious proviso that the trainers must be competent to teach in this area), so employers have wide discretion in customizing their training programs. Use of employment attorneys, outside HR and/or training specialists, or internal HR personnel and/or corporate counsel are possibilities. Since the training must be transparent in a litigation context, it is important that the trainer be experienced and knowledgeable on the dynamics of workplace law.

While training of managerial personnel receives considerable attention, an employer also should review its training of non-managerial personnel. To take advantage of the U.S. Supreme Court's cases on mitigating damages and liability issues, an employer must be able to demonstrate that it has disseminated information regarding its personnel policies and complaint procedures in an effective fashion to new hires and all line employees.

This is generally done through hiring orientation and special training on workplace policies. While this type of training is different in kind and degree from investments in workplace training for managerial personnel, effective information dissemination programs pay huge dividends to employers in avoiding litigation and/or minimizing the risks in lawsuits which are brought. It therefore behooves the company's interests to examine its hiring and orientation procedures, and the manner and methods by which it effectively conveys these policies to all line employees.

Lisa Bee is director of EPL risk management for Lexington Insurance Company in Boston. Gerald L. Maatman is a partner with Seyfarth Shaw in Chicago.

Reproduced from National Underwriter Edition, April 29, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.