Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964 (Title VII) and its state and local equivalents.  Unwelcome sexual advances, requests for sexual favors, and other conduct may rise to the level of unlawful sexual harassment, create the basis for an expensive lawsuit, and impact employee morale and retention.

Sexual harassment prevention training is required by statute in many jurisdictions.  Training is strongly recommended by the U.S. Equal Employment Opportunity Commission (EEOC).  The EEOC guidelines apply to employers in all states and state in pertinent part, that employers should provide harassment prevention training to all employees on a “regular basis” to ensure they understand their rights and responsibilities.

Moreover, in Kolstad v. American Dental Association, the U.S. Supreme Court held that employers could avoid punitive damages in harassment and discrimination cases if the employer could show that it had made “good faith efforts” to prevent harassment and discrimination.  Kolstad v. American Dental Ass’n, 527 U.S. 526, 545 (1999).  Therefore, sexual harassment prevention training should be part of all employers’ efforts to eliminate sexual harassment in the workplace.

Some states have their own specific requirements for training.  Employers should consult with counsel to determine applicable guidelines.  For example, as of January 1, 2019, all employers in Delaware, having 50 or more employees, must provide interactive training and education to employees within one year of hire regarding the prevention of sexual harassment, and every two years thereafter.  There are specific requirements for content of training and supervisors must receive additional training on the specific responsibilities of a supervisor regarding the prevention and correction of sexual harassment, and the legal prohibition against retaliation.  See, 19 Del. Code § 711A (g).

In Massachusetts, every employer must adopt a policy against sexual harassment.  See, M.G.L.A. 151B § 3A.  Employers are “encouraged” to provide sexual harassment training to new employees within one year of hire, and additional training to supervisors regarding “the specific responsibilities of supervisory and managerial employees and the methods that such employees should take to ensure immediate and appropriate corrective action in addressing sexual harassment complaints.”  See, M.G.L.A. 151B § 3A.

The Massachusetts Commission Against Discrimination states that, “[i]n claims alleging sexual harassment, an employer’s commitment to providing anti-harassment training to its workforce may be a factor in determining liability or the appropriate remedy.”  See MCAD Guidelines on 151B: Sexual Harassment in the Workplace at 8-9.

State employers in New Jersey must provide training to those that investigate complaints of sexual harassment and provide to the state commission a list of the employees that require this training every three years.  N.J.S.A. 11A:7-14.  There is no counterpart for mandated training in the private sector.  However, a “defendant is entitled to assert the existence of an effective anti-sexual harassment workplace policy as an affirmative defense to vicarious liability.”  Gaines v. Bellino, 173 N.J. 301, 320, 801 A.2d 322, 333 (2002).

As of October 9, 2018, all employers (regardless of size) in New York are required to adopt and distribute a written anti-harassment policy (in the language spoken by the employee) and provide all employees with interactive anti-harassment training annually.  (N.Y. Lab. Law § 201-g; NYSDOL: Combating Sexual Harassment: FAQs: Policy: Q1.; N.Y. Lab. Law § 201-g(2)(a); See, NYSDOL: Minimum Standards for Sexual Harassment Prevention Training.)

In New York City, private employers with 15 or more employees are required to provide annual anti-sexual harassment training to employees who work more than 80 hours per year within 90 days of hire.  The training must be interactive.  The law outlines the minimum requirements that must be included in the training.  See, N.Y.C. Admin. Code § 8-107(30); NYCHRC: Stop Sexual Harassment Act FAQs.

The Pennsylvania Human Relations Commission’s “Guidelines on Sexual Harassment,” state that employers “should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII and the Pennsylvania Human Relations Act, and developing methods to sensitize all concerned.”

In West Virginia, sexual harassment training is recommended by the WV Board of Risk and Insurance Management.

These are but a few examples of state specific requirements and do not represent an exhaustive list of applicable state statutes.  Again, employers should review state requirements and recommendations relative to their jurisdiction and geographical footprint.

Content of Sexual Harassment Prevention Training

Training begins with an Anti-Harassment Policy.  The training should reinforce the message conveyed by the employer’s sexual harassment prevention policy and comply with any requirements imposed by state or local law.

Once the sexual harassment prevention policy is in place, employers should conduct sexual harassment prevention training for all employees.  Training should cover a broad range of topics, including those characterized below:

• Liability
• Remedies
• Harasser Defined
• Procedure for Notifying the Employer of Harassment
• Strategies for Harassment Prevention
• Reasons Employees May Not Report Harassment
• Examples of Sexual Harassment

Employers may provide training for managers and supervisors separate from training for other employees or may opt to provide the same training to all employees but provide additional guidance specific to supervisors and managers.

In addition to creating and maintaining an anti-harassment policy, employers should:

• Make the policy available to both current employees and new hires.
• Make the policy accessible through an employee handbook, a stand-alone policy, or both.
• Require employees to sign an acknowledgment of receipt and understanding of the policy (either as part of an employee handbook or as a stand-alone policy).
• Remind all employees and supervisors of the anti-harassment policy periodically.
• Make the policy available on a central bulletin board or intranet website accessible to all employees.
• Consistently enforce the policy and ensure compliance with its terms.

Our Employment Law Group remains available to answer any questions, augment policy and protocol, and provide training.  Please let us know how we may assist your legal needs by contacting the Employment Law Group Chair, James F. Devine, Esq. at jfdevine@c-wlaw.com. 

Lauren Despot Krofcheck, Esq. is a member of Cipriani & Werner’s Employment Law Group and can be contacted at lkrofcheck@c-wlaw.com.

DISCLAIMER

The information in this article is provided for general informational purposes only and may not reflect the current law in your jurisdiction.  By reading this article, you understand that there is no attorney-client relationship between you and Cipriani & Werner, P.C., or any of our attorneys.  No information contained in this article should be construed as legal advice from Cipriani & Werner, P.C. or the individual authors.