The problem of sexual harassment in the workplace continues to plague employers.
Just days ago, San Jose State University agreed to a $1.6 million settlement resulting from the actions of a former employee. This comes as a result of Texas’s new strengthened workplace sexual harassment law, which nearly doubles its statute of limitations. In the last four years, 15 states have passed new laws that crack down on lax employers.
These days, simply having an anti-sexual harassment policy isn’t enough to protect against litigation. A growing number of court cases reveals that, often, the outcome hinges on a single factor: whether or not the employer provided formal sexual harassment training before the event occurred.
Sexual Harassment Law in a Nutshell
The issue of sexual harassment in the workplace first surfaced in the late 1980s, when the Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to recognize sexual harassment as a form of discrimination. The Civil Rights Act applies to employers with 15 or more employees.
Since then, many states have enacted more stringent legislation. Some mandate that all employers—regardless of size—maintain compliance. Some make it easier for employees to sue their employers. And some, like the new Texas law, extend liability to managers that “knew or should have known” there was a problem.
In addition, a handful of states (CA, CT, DE, IL, NJ, NY, ME, plus NYC) have mandated that employers conduct anti-sexual harassment training on a regular basis—say, annually or bi-annually. Many other states strongly encourage it, as does the EEOC.
What Recent Court Cases Reveal
When it comes to sexual harassment litigation, there is no shortage of cases to study. In the last two decades, U.S. employers—including 99% of Fortune 500 companies—have paid $124 billion in related settlements. In fiscal year 2020 alone, the EEOC collected $65 million in settlements, which does not include private lawsuits.
One overarching trend: in both state and federal courts, employers who conduct anti-sexual harassment training fair better than those who don’t, regardless of whether a training mandate exists. For example:
- In Gaines v. Bellino, the New Jersey Supreme Court held that, in order to determine if an employer is liable, it would examine factors including whether the employer had provided anti-harassment training, which it deemed “mandatory” for supervisors and managers. (This was years before the state enacted an employer training mandate.)
- In Kolstad v. American Dental Association, the U.S. Supreme Court held that employers could avoid punitive damages in harassment cases by proving their good faith prevention efforts. One prime way to show good faith: a history of workforce education.
- In Hanley v. Doctors Hospital of Shreveport, the Second Circuit Court of Appeal of Louisiana upheld a jury’s award of punitive damages—largely because the employer had not provided its staff with anti-sexual harassment training.
Similar rulings can be found again in again, across various courts and states nationwide, in cases ranging from Pullen v. Caddo Parish School Board to Marrero v. Goya of Puerto Rico, Inc. to Jones v. Dr. Pepper Snapple Group.
In other words, no sexual harassment prevention policy is complete without a thorough, rigorous employee training program—regardless of whether it’s required by law.
Creating an Effective Anti-Sexual Harassment Training Program
The beauty of a strong anti-sexual harassment training program is two-fold. First, in the event of a lawsuit, it may well be your best defense—proof that you’ve worked to build a healthy, respectful work environment.
Better yet, if your training program is effective, it will prevent harassment from occurring in the first place—or, at the least, allow you to shut down the offensive behavior quickly.
In order to build an effective training program:
1. Make it part of a comprehensive, written anti-sexual harassment policy.
2. Make attendance mandatory.
3. Create a training schedule and enforce it. (Some states require annual training and the training of new hires early on—an excellent gold standard.)
4. Frame training in terms of prevention and maintaining a great work environment.
5. Give employees a clear, straightforward process for reporting an incident.
6. Include bystander training—i.e., what to do if you see harassment occurring among coworkers.
7. Require all employees to sign and date a training completion form, and maintain documentation.
8. Offer managers additional, in-depth training, covering:
- Their obligations and personal liability
- How to handle employee complaints in real time
- A process for documenting employee complaints
- How and when to contact Human Resources
9. Use an online learning management system that offers vetted content and management controls—like EPAY Learning.
EPAY Learning makes it easy to create, administer and document your anti-sexual harassment training initiative. You’ll find best-in-class content, built-in exams and certifications, plus an analytics dashboard and reporting tools for tracking your progress and compliance. It’s powered by Cornerstone and offered in conjunction with our HCM platform. Want to build a rock-solid anti-sexual harassment training program? Learn more.