Employment & Labor Insider

In tough economic times, harassment training tends to be viewed as a luxury that can be gone without until things get better.

I understand this thinking, but harassment training on a regular basis is never a "luxury." It's a "cost of doing business." That is the reality. Here are five reasons why:

"Don't be 'cheep' about your harassment training. (tehe - get it?)"

*Turnover. If it's been, say, five years since you last had harassment training, that means you have a whole bunch of employees who have never had it -- at least, not with your company. If you don't offer harassment training on a regular basis, how are you going to prove that your newer employees knew what behavior to avoid, or what to do if they were victimized? ANSWER: You won't.

"Eating cake is a luxury, mon cherie, but not le harassment training!"

*Evolving law and social conditions. There have not been radical changes in harassment law for a long time, but there has been evolution that makes a program only a few years old seem naive and even quaint. Looking back at my older programs, they were very focused on "traditional" scenarios involving straight men and women telling dirty jokes and having extramarital affairs that went wrong, like General Petraeus and Paula Broadwell.

Now, the courts nationwide have recognized certain types of same-sex harassment as a form of "gender stereotyping" that violates Title VII, and many states have laws prohibiting "LGBT" discrimination, so we spend a lot more time on that subject than we used to. We also place more emphasis now on harassment based on race, national origin, religion, age, and disability. Over the years, the EEOC has placed increasing emphasis on retaliation, so we spend a lot of time on that. We talk more about the emerging issue of "bullying" now. Not to mention misuse of the internet and social media, which we were barely even thinking about a few years ago.

All of which means, if you have had a long hiatus from harassment training, your training will not be current, and you could be at risk for claims based on newer, "hipper," more modern forms of harassment.

"Thousands of pairs of shoes? Extravagant. Annual harassment training? Priceless."

*People forget. Even if you had bang-up, Cadillac Escalade-level harassment training three years ago, I can guarantee that everyone who was in that class has forgotten something important. You know it's true. And I'm talking only about the people who attended the training, of course -- the newer hires haven't heard anything that they can forget.

*It may be legally required, depending on where you live. Some states, including California, require employers to provide harassment training to management. If you're in one of these states, you cannot postpone training. It's the law.

Please take a minute and visit Eric Meyer's The Employer Handbook, which was host this week to the November edition of the Employment Law Blog Carnival. My post from last week about Obama 2.0 is featured there, as well as some great stuff from other employment law and HR bloggers. Thank you, Eric!

*It's expensive . . . until you get sued, and then in hindsight it was a steal. Yes, any harassment training costs money. You may think you don't have the money to spare, and I am sure you are right. But the legal fees to defend an EEOC charge will almost always exceed the cost of the training, and if you get a lawsuit, they will definitely exceed it big-time. Legal fees to get to summary judgment may run you about $50,000 or more, depending on where you live and the complexity of the case. If you don't get summary judgment and have to go to trial, your attorneys' fees may be more like $100,000, not including the plaintiff's attorneys' fees, which she is entitled to recover if she wins. And, of course, not including her award if she wins, which you will have to pay. And, as Chrysler found out, could be substantial.

"It may be a sin to have gold-plated plumbing in your bathroom *sob* and an air-conditioned dog mansion *sob*, but it's no sin to be current on your harassment training!"

Four-point-five million dollars? That harassment training just got real cheap, didn't it?

Seriously! One of the first things you'll be asked by the EEOC or a plaintiff's attorney is how recently you conducted harassment training and whether the parties involved in the case (the alleged victim, the accused, and any witnesses, as well as the people who investigated) attended. If you can say, "Oh, yes, we had training just six months before this all came about, and here are the attendance sheets showing that everyone completed the training," then that is good. In fact, that may provide you with a complete defense to the harassment claim. Wouldn't that be nice?

But sometimes what happens is that the rank-and-file employees testify truthfully that they don't even know what "harassment" is, and the managers "don't recall" the last time they had training because it was, in fact, last conducted before they were born.

Interested in seeing a sample of an interactive, computer-based harassment training program? Here is a "Petraeus-like" segment from a program that my law firm offers.

The cost of harassment training should never be an obstacle to an employer. Many law firms (including my own) and Human Resources consultants and employers' associations will do harassment training on a flat-fee basis so that you can plan for the expense with no surprises. You may have in-house counsel who is capable of doing the training, and if so, even better -- in that event, you don't have to pay anything extra for the training. If your turnover is too high to make "live" training practical, or if your employees are scattered to the four winds so that bringing them to a single location for live training isn't practical, you can go with a computer-based interactive program, a video-workbook combination, or even just a passive videotape (not as good because it isn't interactive, but definitely better than nothing). You can use some combination of these -- for example, by having live training once a year for management, and computer or video training for new-employee orientations in the interim. The possibilities are endless!

PLEASE NOTE: Having regular, current, high-quality harassment training is not a guarantee that you won't get a harassment charge or lawsuit, and it's certainly no guarantee that you will win. But our experience has been that employers who keep up with their training achieve a real benefit from it because employees are encouraged to speak up early, which allows the company to resolve the complaint internally before irreparable damage occurs. And courts have recognized effective training as an element of an employer's defense to some types of harassment cases.

Robert Burton and Benjamin Franklin approved this message!

FYI, next week, in honor of Thanksgiving, my "Friday" post will be up on Wednesday.