SEXual Harassment... The BIG Issue in the Workplace, part 5

Sunday, January 29, 2006 | 0

By Jamie Charter, M.S., CPDM

This article, part 5, will enable WorkCompCentral readers to continue in expanding our awareness and knowledge base regading this highly important and critical issue. While prior articles have been stressing the California law, AB 1825, and specific mention will be made in this regard in this article, our perspective will now broaden in this component as we examine and focus on other states throughout the United States and learn how they address this issue.

Additionally, there may be many California employers reading this article series who have been caught by surprise about AB 1825 who are currently out of compliance. In the event that you find yourself in this position, you are far from alone.

To assist you, a recent discussion transpired with a representative of the California DFEH and I was informed that since January 1, 2006, their office is receiving numerous calls from well-intentioned employers, who had not intended to break the law but simply were unaware of its existence. These employers were seeking direction and guidance as to the appropriate method of proceeding with compliance, since the date has now elapsed.

In this regard, a statement was obtained from Ms. Suzanne Ambrose, Director, Department of Fair Employment, and Housing (DFEH):

"As to AB 1825, any employer who missed the January 1 compliance deadline should provide the training as soon as possible since there is no process for obtaining an extension of time or grace period built into the statute. For every day that passes, the employer runs the risk that an employee will file a complaint with the DFEH or the EEOC and, during the course of the investigation, the noncompliance will be revealed. So it is better that the employer provide the training sooner than later. Additionally, complying as quickly as possible shows good faith on the employer's part of a desire to get into a posture of compliance, albeit a tardy one."

Sexual harassment training requirements under federal law (EEOC):

Sexual harassment training is no longer a luxury utilized only by those employers who wish to be, or appear, proactive in an effort to promote a positive workplace. Since the Supreme Court's landmark decisions in the 1998 Faragher and Ellerth sexual harassment cases, subsequent court decisions and EEOC Guidelines have demonstrated that sexual harassment training is essential and is not to be viewed as something to be dismissed or taken lightly.

Should there be a need to raise a defense or avoid punitive damages in sexual harassment lawsuits, employers need to demonstrate that they have provided periodic sexual harassment training to all employees. Additionally, courts and the EEOC guidelines also have made clear that sexual harassment training should address not merely sexual harassment but all forms of unlawful harassment in the workplace.

Is sexual harassment strictly a women's issue? Would you, as an employer, avoid providing training because it was not required by law in your state? Moreover, is that the only area of discrimination for employer cause and concern simply because it is the law? Certainly not! Here are some statistics for consideration:

While approximately 15,000 sexual harassment cases are brought to the EEOC each year, this makes up only 22% of all harassment claims. Further, the number of harassment claims filed by men has more than tripled in the last few years, and approximately 11% of claims involve men filing complaints against female supervisors.

The remaining 78% of the claims involve harassment based on one of the other protected categories including: race, color, religion, Sex (pregnancy or gender), sexual orientation, marital status, National origin (including language restrictions), Ancestry, Disability (mental and physical, including HIV and AIDS), Medical condition (cancer/genetic characteristics), Age (40 and above), Denial of Family and medical care leave, Denial of pregnancy disability leave or reasonable accommodation).

Analysis of practices regarding sexual harassment training: United States:

California
As of January 1, 2006, California law, AB 1825,specifies that employers with 50 or more employees be required to provide two hours of mandatory sexual harassment training for managers and supervisors. The training requirement applies to all members of management, from front line supervisors to business owners and CEOs. AB 1825 also extends to entities that regularly receive the services of 50 or more persons according to a contract. This training must be completed every two years.

In addition to the requirements of AB 1825, the DFEH, pursuant to the California Fair Employment and Housing act requires employers to take "all reasonable steps to prevent harassment from occurring. According to the California Department of Fair Employment and Housing ("DFEH"), such reasonable steps include providing all employees sexual harassment training." In addition to sexual harassment training, all employees must receive from their employers a copy of the DFEH pamphlet "Sexual Harassment is forbidden by Law" (DFEH-185) or an equivalent document.

Colorado
The Colorado Sex Discrimination Rules, as adopted by the Colorado Civil Rights Commission, encourage employers to "sensitize" employees regarding issues relating to sexual harassment.

Connecticut
The Connecticut Human Rights and Opportunities Act requires all private and public employers with 50 or more employees to provide two hours of sexual harassment training to all supervisory employees within six months of the assumption of a supervisory position. . The sexual harassment training must cover topics such as follows:

Laws prohibiting sexual harassment, the definition of sexual harassment and examples of prohibited conduct, remedies available for sexual harassment, and strategies for avoiding sexual harassment in the workplace. The state has also promulgated regulations describing in detail the sexual harassment training requirements.

An interactive on-line course would address and meet the requirements, as long as students would be granted ample opportunity to ask questions, thus ensuring an interactive nature of the specific program.

Connecticut
Connecticut law requires state agencies to provide three hours of diversity training to all supervisory and non-supervisory employees and to all new supervisory employees within six months of the assumption of a position with a state agency. This training must encompass information on state and federal discrimination laws as well as hate crimes directed at protected classes.

Florida
The Public Personnel Rules of Florida's Administrative Code require all supervisors in Florida executive branch agencies to receive training on affirmative action and equal opportunity, including sexual harassment training.

Illinois
The Illinois Human Rights Act requires every public employer to provide sexual harassment training as a component of all newly hired employee-training programs.

Maine
In Maine, the Sexual Harassment Training and Education in the Workplace Law requires all private and public employers with 15 or more employees to provide sexual harassment training to all new employees within one year of beginning employment.

Massachusetts
The Massachusetts Fair Employment Practice Act requires all employers to promote "a workplace free of sexual harassment." This law encourages employers to provide sexual harassment training to all new employees within one year of beginning employment. Additionally, supervisors and managerial staff should receive additional sexual harassment training on their responsibilities for preventing sexual harassment and addressing sexual harassment complaints. In addition, employers must distribute a written version of their sexual harassment policy annually to all employees and to each new employee at the beginning of employment.

Michigan
In Michigan, the Disability Bias Law requires the department of civil rights to offer training programs, including sexual harassment training, to employers, labor organization and employment agencies to assist in understanding the requirements of the Act.

New Jersey
The New Jersey Supreme Court held that, in judging whether an employer has been negligent in preventing sexual harassment under state law, state courts should consider whether the employer made sexual harassment training available to all employees in its organization. The court stated that an employer that provides sexual harassment training helps demonstrate the employer's "unequivocal commitment from the top" to preventing sexual harassment.

Oklahoma
Through its Rules of Personnel Management and Administration, Oklahoma's "Fair Employment Practices Act" requires that all state personnel who investigate complaints of discrimination be trained in the following areas of equal employment opportunity, discrimination, and burdens of proof. Thus, investigators should receive sexual harassment training and training on all other equal opportunity laws regarding the other protected classes.

Rhode Island
Rhode Island's Sexual Harassment, Education and Training Law encourages employers to provide sexual harassment training to all new employees within one year of beginning employment. Employers are further encouraged to provide sexual harassment training to new supervisory and managerial employees within one year of their assumption of a supervisory position. Supervisory sexual harassment training should specifically address the responsibilities of supervisory and managerial employees to prevent sexual harassment and respond appropriately to sexual harassment complaints.

Tennessee
Pursuant to Tennessee State Employees' Sexual Harassment Law, the state department of personnel is obligated to provide sexual harassment training to all public employees.

Texas
The Employment Discrimination Law in Texas mandates that each state agency provide its employees with employment discrimination training, including sexual harassment training within thirty days after being hired. It then must be repeated on a supplemental basis every two years.

Utah
All public employers are required, under The Utah Department of Human Resource Management Rules, to provide sexual harassment training consistent with standards established by the Department. See Utah Admin Code.

Vermont
The Vermont Fair Employment Practices Act encourages employers to provide sexual harassment training to all current employees and to provide sexual harassment training to all new employees within one year of commencement of employment. The training for supervisors should specifically address the responsibilities of supervisory and managerial employees to prevent sexual harassment and respond appropriately to sexual harassment complaints.

What can employers do right now to safeguard their business?

1.Ensure that a business wide policy is in place and that all employees are familiar with the company zero tolerance policy.

2.Fully comply with the requirements of this new law.

3. Provide training that not only complies, but also actually changes employee behavior to prevent costly and avoidable harassment claims in this, and the other prescribed protective classes.

4.Include managers, supervisors, and all other employees in your training program. Ensure that employees know what to do in case they need to file a complaint or concern and keep communication lines open.

5. While employers with less than 50 employees are not yet legally required to provide such training in some states in the United States, implementing a program and doing so may help to substantially reduce legal exposure and liability dramatically. It is therefore, recommended that ALL employers (even with less than 50 employees) arrange for workplace harassment training!

6. All claims of harassment must be taken seriously and thoroughly investigated. Naturally, there may be some situations when it is clear that the behavior did not violate the employer's policy even if it upset the complaining party. It is your obligation to ensure you are maintaining vigilance regarding those employees in your workplace.

Employers cannot plead ignorance about being liable for sexual harassment by a manager or supervisor. It is your responsibility to familiarize yourself with the rules pursuant to your state and respond accordingly.

Failing to properly train your staff can result in punitive damage charges by demonstrating "reckless disregard" for the Fair Employment and Housing Act in California, the EEOC on the federal level and all of the pertinent laws in your individual state.

For those of you have provided this training, remember it is considered a minimum threshold, only. Train, reinforce, retrain, and walk the walk of your zero tolerance policy for discriminatory practices in your workplace.

Future, planned articles will provide WorkCompCentral readers with continued opportunity for education, information, and guidance on all of these issues and areas regarding discrimination and harassment. Next article segment: sexual harassment cases, policy discussion, investigation techniques, and more prevention tips.

Author Jamie Charter has been providing employment and litigation consulting services for 21 years through Charter and Company in Soquel, California and the Employment Resource Consultants. Jamie is certified as a Professional in Disability Management, (CPDM) and is a State of California Independent Vocational Evaluator (IVE) . Jamie is also an accomplished writer and editor, with many published articles in employment related issues in wide-reaching media arenas. Jamie can be reached at jcharter@calcentral.com; 831-479-1977.

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The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.