By now, most employers understand that if they operate a business in California and have fifty or more employees, they are required under state law to provide two hours of sex harassment training to supervisors in California every two years. The law that implemented the training mandate, commonly referenced as AB 1825, was enacted in 2004, and required the first two-hour training session to be completed by January 1, 2006. As such, most employers are scheduling or have recently completed a fourth training session. The required course content for the training has not changed since AB 1825 was enacted. As such, employers are now teaching the same substantive content for the fourth time, specifically, the laws prohibiting sexual harassment, practical guidance on the prevention of harassment, and the remedies available for victims of harassment.
The applicable regulations require that harassment prevention training be interactive. Nevertheless, by the fourth class covering the same material, even the best of students lose interest. Many employers are now confronting the challenge – how to cover the same content, but inject it with new meaning that is both compelling and interesting. Can it be done?
Certainly, the mandate itself provides little guidance other than to require that the training be interactive and include practical guidance on preventing and rectifying harassment. And the regulations, albeit somewhat more helpful by requiring questions that assess learning, skill-building exercises and use of hypothetical situations do not provide ready answers on avoiding boredom. This means that an employer must rely on its own resources and ingenuity. Fortunately, the training mandate is flexible enough to allow a creative and resourceful approach. Cook Brown attorneys offer a few suggestions designed to “mix it up” in the harassment training classroom in order to get the message across.
Sex Harassment Training – Encourage Dialogue, Provide Examples, Start with Basic Questions
First, although employers must train supervisors, there is no prohibition against training non-supervisors, along with supervisors. Mixing up the attendance sheet so that supervisors and the employees who report to them are in the same class can lead to interesting conversations and trigger dialogue about helpful issues, such as clarifying the actual mechanics of a harassment investigation or identifying the managers responsible for responding to complaints. Many supervisors are surprised to learn that employees who report to them have never read the company’s sex harassment policy or do not understand where to lodge a complaint.
Second, although trainers must be qualified in that they must be attorneys, professors or human resource professionals with applicable experience, trainers are not required to do all the talking. Some of the most effective learning takes place when students in the class are asked to express their opinion about the company’s policy, its effectiveness, or its shortcomings. The class as a whole can consider, discuss and formulate in writing proposals to improve the company’s harassment policies. A group reading of the company’s policies can also prompt some interesting dialog amongst attendees.
Third, the training can include discussion of evolving or cutting edge workplace issues, such as employee interaction in social media – blogging, tweeting, and personal web pages. Supervisors may not have had to confront those issues years ago, but now are sure to welcome tips on responding to and preventing harassment on the internet.
Fourth, sex harassment training can include discussion of cross-cultural issues. Where the employee workforce is diverse, whether in terms of the age groups of the employees, their national origin, their primary language, their religious beliefs or otherwise, an employee’s culture and background impact how harassment is perceived. Words in one culture may have an entirely different meaning in another – even if translated correctly. Employers can use the harassment training to explore these cultural issues.
Fifth, the training can emphasize some of the challenging legal issues confronting attorneys litigating sexual harassment cases, such as the extent a plaintiff can ask other victims to testify on his or her behalf, the kinds of experts allowed to testify, and the types of damages awarded. Certainly, any discussion of harassment remedies could include a careful review of sexual harassment trials and their results.
Finally, the training can emphasize the supervisor’s role in ensuring a workplace free of harassment. The training can start with three basic questions: (1) do all the employees who report to you know the company’s policy on harassment and if not, why not? (2) do non-English speakers know the company’s policy on harassment and, if not, what can be done about it; and (3) what are the most challenging aspects of preventing harassment – based upon any protected characteristic – race, gender, age, disability, etc., and what tips to supervisors have for each other on responding to these challenges? Those discussions, when led by an experienced and knowledgeable trainer, will help ensure the training is timely and useful.
These are just a few ideas on reinvigorating the mandatory training and making sure it accomplishes the aims of AB 1825 – providing California’s employees a harassment-free workplace.