Sexual Harassment Training Essential in All States, Not Just Those With Mandatory State Training Laws
Michael Johnson, J.D.
Some employers erroneously believe that they only need to provide sexual harassment training and other forms of workplace harassment prevention training to employees in states and local jurisdictions that have statutes requiring such training. While California, Connecticut, Delaware, Maine, New York State, and New York City have passed statutes requiring sexual harassment training, other federal and state laws, regulations, and court decisions have made clear that employers should provide anti-harassment training to all employees in all states.
State Statutes Requiring or Encouraging Training. Connecticut and Maine have long required employers to provide sexual harassment training at least once. Connecticut requires the training only for supervisors and Maine requires the training for all employees. Since California AB 1825 became effective in 2005, California has required sexual harassment training for supervisors every two years. In 2018, New York State and New York City passed laws requiring annual sexual harassment training for all employees. In 2018, Delaware also passed a law requiring sexual harassment training every two years. In addition to states that require employers to provide sexual harassment training, many other states, such as Colorado, Florida, Massachusetts, Michigan, Oklahoma, Rhode Island, Tennessee, Utah, and Vermont, have laws that “encourage” employers to provide such training.
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State Courts. Some state courts have interpreted their state anti-harassment laws to make harassment training essential. For example, in Gaines v. Bellino, the New Jersey Supreme Court held that, in determining whether an employer is liable for co-worker harassment, the Court would examine factors such as whether the employer had provided anti-harassment training. According to the Court, the anti-harassment training “must be mandatory for supervisors and managers, and must be available to all employees of the organization.” An employer’s training obligations can also go beyond training permanent employees. In 2015, the New Jersey Supreme Court ruled in Jones v. Dr. Pepper Snapple Group against an employer in a motion for summary judgment in part because the employer had not provided harassment prevention training to a temporary employee.
EEOC. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidelines, which apply to employers in all states, stating that employers periodically “should provide [harassment prevention] training to all employees to ensure they understand their rights and responsibilities.” Further, the EEOC’s 2016 Report from the Select Task Force on the Study of Harassment in the Workplace noted that “Training should be conducted and reinforced on a regular basis for all employees.”
Federal Courts. Federal court decisions for years have shown that employers who do not train all employees may lose their ability to avoid punitive damages in a harassment lawsuit. In the Kolstad v. American Dental Association case, 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. In determining “good faith efforts,” the Court held that:
The purposes underlying Title VII are …advanced where employers are encouraged to adopt antidiscrimination policies and to educate their personnel on Title VII’s prohibitions.
Many lower courts have ruled that to avoid punitive damages employers must have provided harassment training to their employees. In Swinton v. Potomac Corporation, for example, the Ninth Circuit Court of Appeals upheld a punitive damage award of $1 million in a racial harassment case, noting in part that the company had not educated its workforce on its harassment policy. Likewise, in Hanley v. Doctors Hospital of Shreveport, the court upheld a jury’s award of punitive damages in a sexual harassment and retaliation case in part because the employer had not provided its employees sexual harassment training.
Decisions by federal courts have shown that employers who fail to provide harassment prevention training may even lose their ability to raise an affirmative defense in a harassment lawsuit. In the joint cases of Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, the U.S. Supreme Court ruled that an employer could escape liability for “hostile environment” harassment committed by a supervisor if it could prove that: (1) the employer took reasonable care to “prevent and correct promptly” any harassing behavior; and (2) the harassment victim unreasonably failed to complain.
Since the Supreme Court’s decisions in the Faragher and Ellerth cases, courts around the country have made clear that to raise an affirmative defense to harassment claims, employers cannot simply have a harassment policy; instead, they should provide their employees harassment training. For example, in the 2015 case of Pullen v. Caddo Parish Sch. Bd., the Fifth Circuit U.S. Court of Appeals held that an employer was not entitled to summary judgment in part because it had not provided harassment prevention training to its employees. Similarly, the First Circuit ruled in Marrero v. Goya of Puerto Rico, Inc. against an employer that had not provided harassment prevention training to the plaintiff employees. In addition to federal appellate court decisions, several federal trial courts have reached similar conclusions. (See, Clark v. UPS; Miller v. Woodharbor Molding & Millworks, Inc.; Hill v. The Children’s Village.)
As these examples make clear, employers’ views on harassment prevention training must shift from “nice-to-have” to “must-have”—for all employees in all states. This paradigm shift should help reduce the occurrence of workplace harassment and protect employers from liability in high-stakes harassment lawsuits.
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* Michael Johnson, CEO of Clear Law Institute, is a former U.S. Department of Justice attorney who brought one of DOJ’s first “pattern or practice” sexual harassment cases. He has provided training and consulting on harassment prevention or investigations to organizations around the world, such as the EEOC, the United Nations, and Google. He is a graduate of Duke University and Harvard Law School.