Anti-harassment training: Less is … less By Margaret M. Clark

Employers who are geared up to comply with the new California law requiring two hours of sexual harassment training for supervisors may think they’re sitting pretty, but, if that’s all the anti-harassment training they’re planning to do, they may be in for a rude awakening.

The statute leads some business leaders to believe that there’s no need to train on other forms of workplace harassment, such as race, national origin, religion and disability, for example, said San Francisco employment lawyer Garry Mathiason. “The statute sets you up for a really bad fall,” he stated.

Last September, Calif. Gov. Arnold Schwarzenegger signed into law Assembly Bill 1825. The measure requires employers with 50 or more employees—located in California or in other states—to provide all supervisors with two hours of interactive sexual harassment training and education once every two years.

The problem with the law, said Mathiason, is that it may induce employers that have never conducted any anti-harassment training to limit their programs to sexual harassment. Worse yet, it may tempt those that have been training on all forms of harassment to scale back their offerings to deal exclusively with sex, he said.

“It’s dead wrong to do just sexual harassment,” Mathiason said.

Although no federal statute expressly mandates anti-harassment training, a large body of case law makes it a virtual necessity to avoid significant exposure to liability and punitive damages.

Mathiason, who chairs the corporate compliance practice group of the national Littler Mendelson law firm, told of an HR professional who fully understood the need to do all forms of anti-harassment training. The boss’s reaction? “Read my lips: ‘Sex.’ We want to do the barest minimum.”

“Only as a last resort would we do a pure sexual harassment training program, because we regard it as harmful,” said Mathiason, whose firm has a separate training subsidiary.

National employers are looking to align their systemwide training programs with the California law. “It makes no sense to do a special program,” Mathiason said. But the potential for harm arises when employers that had broader programs adopt the California law as a lowest common denominator rather than incorporating California’s requirements into their existing broad-based programs.

From the East Coast, Massachusetts employment lawyer William E. Hannum III reports that his firm, Schwartz Hannum PC, is “designing a program that’s broader than just what’s required under the California statute.”

But Hannum said he still gets pushback from clients who do not wish to do any anti-harassment training at all, he said. “We get a lot of resistance because it’s time-consuming, expensive and inconvenient. Employers are afraid that things are going to come out of the woodwork.”

Legal consequences

Conducting anti-harassment training gives employers the benefit of certain legal protections. It allows employers to rely on an affirmative defense that they should not be held responsible for harassment perpetrated by their supervisors, and it mitigates against the award of punitive damages if they are found liable.

Although the seminal U.S. Supreme Court cases establishing the affirmative defense involved sexual harassment, the principles have been “widely applied to other forms of harassment,” Mathiason said.

Failing to include all forms of harassment in supervisor training does “huge harm,” he continued. “It can be measured in dollars and cents. It’s like putting up half of your defense field.”

“We handle dozens of lawsuits around the country every day,” Mathiason said. Say a company is subject to a racial harassment class action. This would be the plaintiff’s classic attack pattern, he said: “This employer is a minimalist. They don’t do anything more than they’re legally required to do. They make no effort because they don’t really care about race discrimination. Send them a message.”

And the message? Punitive damages.

“I think it is HR malpractice to do just sexual harassment training,” Mathiason said. But he and Hannum agreed that most HR professionals understand what needs to be done and why.

The problem is that top executives in some organizations are simply unwilling or unable to devote the necessary resources to the best preventive practices. “Most HR people are highly proactive, but they have limited resources,” Hannum said.

So what’s the knowledgeable and responsible HR professional to do? Educate business leaders on the issues and the consequences, Mathiason and Hannum recommended. If that fails to persuade, “document your every effort to broaden the training and that somebody else made the decision not to,” Mathiason said.

Back to the future

In 1999, the U.S. Equal Employment Opportunity Commission (EEOC) blasted the employer community for limiting anti-harassment training to sex, Mathiason points out. The agency’s Enforcement Guidance on Vicarious Employer Liability For Unlawful Harassment By Supervisors, issued that year, makes it clear that the rule applies to unlawful harassment on all covered bases.

So why is this still an issue in 2005?

“The only explanation for [the limited nature of the California law] is the political reality of what would and what would not get signed by the governor,” Mathiason told HR News.

The governor had maintained an iron-clad pledge not to put additional burdens on employers, but there was no way, politically, that he could turn down a measure limited to sex harassment, Mathiason explains.

The California law is similar to a Connecticut statute that requires sexual harassment training. “The Connecticut legislature did a very appropriate well-reasoned thing at that time—the early ’90s,” Mathiason said. But in using Connecticut as a model, California “picked up a perspective that doesn’t reflect current needs in the workplace.”

“I think not doing any harassment training at all is penny-wise and pound-foolish,” Hannum said. “If you’re required by statute to do part of it, you might as well go all the way. It’s not a significant additional cost in terms of time, fees or resources.”

Mathiason also bemoans the situation with employers that have never done any training. But “far worse,” he said, is that “we’re getting organizations that are coming back to us and saying ‘two hours is it.’ That they would undo an excellent process on their part, to me, is a huge step backward.”

“Most of the operative principles that you would teach on sexual harassment are equally applicable to these other areas,” Mathiason said. The expense of incorporating other prohibited bases is “pretty minimal,” he agreed.

For the content that needs to be delivered using effective teaching methodologies, “two hours is a significant amount of time,” Mathiason said. It’s possible to have a very effective program on prohibited harassment in two hours, but “now we do two and a half hours to verify that there is a least two hours of sex harassment training.”

Margaret M. Clark, J.D., SPHR, is senior legal editor for HR News.