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The New Law of Training: Part I: Training on Discrimination and Harassment: A Necessity, Not A Luxury Anymore

Beginning with the U. S. Supreme Court’s 1998 decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, training on harassment has pretty much became a “must” for employers. In 1999, the Supreme Court’s decision in Kolstad v. American Dental Association not only prompted employers to enhance their harassment training efforts, but also to expand their training to cover the discrimination laws in general. Interestingly, those cases were not just about training. The Faragher and Ellerth cases provided a new employer defense to a sexual harassment claim. In those cases, the Court indicated that an employer may be able to minimize its liability in a harassment case if it can prove that it took “reasonable steps to prevent harassment.” Training is considered one of those preventative steps. In Kolstad, the Court provided a defense against punitive damages in discrimination cases to employers who have exercised “good faith efforts to comply with the discrimination laws.” Again, training is often considered by the courts as one example of a “good faith effort to comply.”In the five years since those Supreme Court decisions, the courts and juries in discrimination and harassment cases have regularly been called upon to determine if the employer took reasonable steps and made good efforts to prevent harassment and comply with discrimination laws. This much is clear: having a non-discrimination and nonharassment policy is probably not enough. Increasingly, the courts are looking at whether and to what extent the employer is providing education and training on harassment and discrimination. Consequently, it isn’t too surprising that the employer’s training efforts and programs are frequently reviewed in such cases. In fact, training is so frequently mentioned in the cases now that it is a theme in and of itself. We are seeing what may be a new body of employment law called the “law of training.”Needless to say, the “law of training” is still developing. We expect the trend to continue for some time, as the courts provide additional guidance on the training “who, what, when, where, and how’s.” In the meantime, employers are attempting to glean from the cases as much as they can about training, and claimants are using training issues as a method of attacking the employer’s defense position. As case law develops, we hope the courts provide even more guidance on who should be trained, what topics should be included, how often training should take place, what training methodology should be used, and what constitutes “adequate” training.Although the courts have not yet unequivocally stated that training is a “legal obligation,” it is so frequently taken into account by the courts these days that employment lawyers and seasoned HR professionals now consider it a “must.” Without it, defending a harassment or discrimination claim can be very difficult. But with it, employers at least stand a chance of minimizing their exposure in many cases. What are the most common training deficiencies?

COMMON TRAINING DEFICIENCIESWhat do we know from the cases so far? Consider the following insights:

Failure to Train At All. One of the factors the courts consider is whether the employer has provided any training at all. The term “training” has not been defined by the courts but could arguably encompass a wide range of tactics for educating employees about harassment and discrimination. From a defense position, we will usually look at all methods of increasing employees’ awareness. This would include formal training programs and materials. It would also include informal methods of education, such as memos accompanying distribution of an employer’s harassment and discrimination policies, email reminders of the policies, handbook provisions, counseling sessions, staff meeting agendas and notes, and similar items. However, the courts tend to focus on formal training programs. It appears that informal methods of training, although helpful, may not be viewed by the courts as an adequate substitute for more formalized training. Why? Because an employer’s actual commitment to training is another factor the courts take into account. An employer who has spent the time and money to implement formal training programs is arguably an employer who is actually committed to preventing harassment and complying with discrimination laws.Failure to Train on All Forms of Harassment and Discrimination. Over the last few years, the courts have made it increasingly clear that an employer’s obligation to prevent workplace harassment and to make good-faith efforts to comply with the discrimination laws extends beyond sexual harassment issues. It is now fairly commonplace for the courts to examine whether an employer’s compliance efforts have included appropriate and effective training on the type of discrimination or harassment that is involved in the case. For example, if the case is a racial harassment case, the relevant consideration is whether the employer provided training on racial harassment. If the case involves failure to accommodate under the ADA, the relevant consideration is whether the employer provided training to supervisors on the employer’s obligation to reasonably accommodate. Since it is impossible to know in advance what types of claims might be asserted against an employer, it is particularly important to make sure the bases are covered. Therefore, training should ideally cover: (a) harassment based on all protected categories (including, but not just, sexual harassment); (b) the discrimination laws in general; and (c) reasonable accommodation and permissible/impermissible inquiries under the ADA.Failure to Train Frequently Enough. A relatively new issue being considered by the courts is whether training is recent or frequent enough. Although there is no magic formula for frequency, there are certain rules of thumb. First, employers should provide basic harassment and discrimination training to all new employees as soon as possible after being hired. Second, supervisors should be given supplemental training on special supervisory obligations as soon as possible after becoming supervisors. Third, refresher training should take place at regular intervals (such as every 1-2 years for supervisors and every 1-3 years for all employees). Fourth, refresher training should also take place when special circumstances arise (whenever the employer makes a material change in its harassment or discrimination policies, if internal complaints of harassment or discrimination seem to be on the rise, significant changes in the law, acquisition of a new division or subsidiary, etc.).Failure to Train on Investigations. In discrimination and harassment cases, courts will frequently review the quality, thoroughness, and timeliness of an investigation. It is not unusual for plaintiffs’ attorneys to attack the quality of the investigation and the credentials of the investigators. Therefore, it is becoming increasingly important for HR professionals and supervisors who have responsibility for investigating to receive training on how to conduct investigations, how to interview witnesses, how to document findings, and how to implement corrective action. Plaintiffs’ counsel have discovered a new witness for their cases–the internal investigator (usually an HR professional or other supervisory employee). These investigators (who historically have been witnesses on behalf of the employer) are being grilled by plaintiffs’ attorneys to ascertain their level of expertise on the law and their credentials and skills regarding investigations. In essence, HR professionals and supervisors (management employees) can easily become one of the key witnesses for the other side if the investigation is inadequate.Failure to Conduct Effective Training. It is not enough to just provide training. The training must be “effective,” according to some courts. So far, the courts have not provided any hard guidance on what elements must be present for training to rise to the level of being “effective.” But the message is clear. Plaintiff’s attorneys have already latched on to the concept of “effectiveness” and are using “lack of effectiveness” as a new line of attack. Any number of approaches are being used by plaintiffs’ counsel to prove that the training was not effective. First, was there an adequate commitment by the employer to the training–was it mandatory or optional, and did top management make its support of the training clear? Second, the credentials of the trainer may be questioned–was the trainer a true subject matter expert with sufficient knowledge of the law to conduct the training? Third, training materials may fall under attack–did they include the right content and accurate statements of the law? Fourth, the length of the training program might be an issue–was it long enough to adequately discuss the subject matter? Finally, the training results could prove to be problematic–did the employer measure whether the training was effective through use of a quiz or other measuring device?