Workplace Sexual Harassment and Increased Training Requirements for Employers
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Paul R. Bedard, Esquire
Many health clubs that faced temporary closure due to COVID-19 are in the process of reopening their doors. Although the topic of workplace sexual harassment has largely and understandably taken a backseat to more pressing societal issues within today's news cycle, more states have implemented laws mandating employee sexual harassment training for employers since I last reported on this topic within the December 2017 Edition of Club Insider.
This article is not intended as legal advice. Workplace sexual harassment continues to be a complicated and fact-specific legal issue with potentially debilitating reputational and financial costs for those employers who fail to comply with legal requirements. The laws in this regard are many and varied, and unique facts and circumstances in each case prohibit blanket recommendations. Therefore, please consider the following information as an educational guide, and please consult an attorney for specific direction.
Understanding Governing Law and The Trend Towards Increased Training Requirements
An employer's first line of defense against sexual harassment claims is a highly trained and educated workforce that understands their legal duty. From a Federal standpoint, Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against employees based on race, color, national origin, religion and sex. Sexual harassment is considered a form of sex discrimination under this Federal law that applies to private employers with 15 or more employees, as well as government and labor organizations.
It is illegal to engage in sex discrimination, and it is also illegal to retaliate against someone who files a complaint alleging sexual harassment. This Federal protection from retaliation further extends to those who testify or participate in any fashion within an investigation involving a sexual harassment complaint. An employer who has potential legal exposure due to a claim of sexual harassment will have guaranteed legal exposure should the employer retaliate against or otherwise punish the person making the complaint or any of those involved within the investigation.
Unlawful sexual harassment includes but is not limited to any verbal or physical harassment that is sexual in nature, unwelcome sexual advances, requests for sexual favors, offensive jokes and remarks, sexually suggestive objects and pictures, any conduct that is sexual in nature that affects a person's employment, unreasonably interferes with someone's work performance or creates an intimidating, hostile or offensive work environment.
Both the victim and the harasser can be male or female, same sex or different. A harasser can be a victim's co-worker, supervisor, client, customer or any third-party that impacts the work environment. The victim of the harassment at issue does not need to be directly harassed. Someone who is residually affected by the conduct at issue may have a claim of sexual harassment. Unlawful harassment may occur regardless of whether the victim is discharged, demoted or negatively impacted from a financial standpoint.
It should be noted that some conduct that may appear to qualify as workplace sexual harassment may not be unlawful. Isolated non-serious incidents and annoyances and conduct between willingly engaging participants may not qualify as illegal harassment. Either way, this conduct may at a minimum constitute a violation of policy. Any such violation of policy must be addressed promptly, fairly and consistently to avoid a claim of disparate treatment.
In addition to Federal law, all states have laws prohibiting sexual harassment. Moreover, an increasing number of states have mandated employee sexual harassment training for public and private employers under varying circumstances. For many years, Maine, California, and Connecticut have required this type of employee training. Since I last reported on this issue, additional states have implemented training requirements. Furthermore, some longstanding laws have expanded the training requirements for employers. Many other states that do not require employers to provide sexual harassment training to employees encourage employers to provide such training.
Some of these state laws are very briefly summarized as follows:
- Maine requires employers with 15 or more employees to provide sexual harassment training to all employees within one year of hire with additional training requirements for supervisors and managers.
- California requires employers with 5 or more employees to provide sexual harassment training within six months of hire or promotion. All employees must be trained by January 1, 2021. Ongoing sexual harassment training is required every two years. California expanded its training requirements, as the prior law required training only for supervisors within organizations of 50 or more employees.
- Connecticut requires employers with 3 or more employees to provide sexual harassment training to all employees by October 1, 2020 or within six months of hire. Like California, Connecticut expanded its training requirements. The prior law only applied to supervisors within organizations of 50 or more employees.
- Delaware requires employers with 50 or more employees to provide sexual harassment training to all employees and supervisors within one year of hire, with additional training content for supervisors. Retraining is required every two years.
- Illinois and New York require that all employers provide sexual harassment training to all employees on an annual basis.
- Although not required, Colorado, Florida, Hawaii, Iowa, Maryland, Massachusetts, Michigan, Ohio, Oklahoma, Rhode Island, Tennessee, Utah, Vermont and Wisconsin "encourage" employers to provide sexual harassment training.
State laws vary regarding who is qualified to conduct this training, whether training must be interactive, length of training, specific content, documentation requirements, etc.
Why All Employers Should Provide Sexual Harassment Training
The Equal Employment Opportunity Commission has issued Federal guidelines indicating that employers should provide training to "all employees to ensure they understand their rights and responsibilities." Many court decisions have shown that employers who fail to train their employees may be subject to punitive damages, whereas those employers who can demonstrate that they have made good faith efforts to combat harassment and discrimination are far more likely to avoid these financially debilitating damages. Damages in a case involving a claim of sexual harassment can easily climb into the millions of dollars range. Therefore, it is in every employer's best interest to provide workplace sexual harassment training to all employees.