Legal Trends: The New Law of Training

​Training on harassment and discrimination is not a luxury anymore.

In the six years since the U.S. Supreme Court broke new ground in three landmark employment discrimination cases, courts and juries regularly have been called on to determine whether employers took reasonable steps and made good faith efforts to prevent unlawful workplace harassment and to comply with discrimination laws. Today, this much is clear: having non-discrimination and nonharassment policies is probably not enough.

Increasingly, courts are looking at whether and to what extent the employer uses education and training to prevent harassment and discrimination. Employer training efforts and programs undergo such thorough judicial scrutiny and are mentioned in so many cases that development of a new body of employment law is emerging: the law of training.

Although not just about training, the high court’s 1998 decisions in Faragher v. City of Boca Raton and Burlington Industries Inc. v. Ellerth and its 1999 decision in Kolstad v. American Dental Association have rendered antiharassment training a workplace essential.

Faragher and Ellerth provided employers with a new defense to sexual harassment claims. In those cases, the Supreme Court indicated that an employer may be able to minimize its liability in a harassment case if it can prove that it took “reasonable steps to prevent harassment.” Training is considered one of those preventive steps. (For a broader and more detailed analysis of the law evolving from these cases, see “The Faragher/Ellerth Decision Tree” in the Legal Trends column of the September 2003 issue of HR Magazine.)

Kolstad prompted employers not only to enhance their harassment training efforts, but also to expand their training to cover the discrimination laws in general. In that case, the court provided a defense against punitive damages to employers who exercised “good faith efforts to comply with the discrimination laws.” Again, courts often consider training as one example of an employer’s “good faith effort to comply.”

Although courts have not yet stated unequivocally that training is a “legal obligation,” they so frequently take it into account that employment lawyers and seasoned HR professionals consider it a must. Without it, defending a harassment or discrimination claim can be very difficult. With it, employers in many cases stand at least a chance of minimizing their exposure.

Subjects of Scrutiny

The “law of training” is still developing. This is expected to continue, as courts provide more guidance on the “who, what, when, where and how” of training. In the meantime, employers and their counsel glean as much as they can from the training cases to ensure their programs pass legal muster.

Here’s what case law shows so far.

• Failure to train.
  
  Courts consider whether the employer provided any training at all, but they have not defined the term “training.” From a defense position, attorneys usually will look at all methods of increasing employee awareness—both formal and informal. Examples of informal tools include distribution of memos paired with an employer’s harassment and discrimination policies, e-mail reminders of the policies, handbook provisions, counseling sessions, staff meeting agendas and notes, and similar items.

  Courts, however, tend to focus on formal training programs. They may not view informal methods of training as adequate substitutes. Because courts take into account an employer’s actual commitment to training, they may conclude that an employer that has implemented formal training is fully committed to preventing harassment and complying with discrimination laws.

• Scope.
  
  Courts have made it increasingly clear that an employer’s obligation to prevent workplace harassment and to make good faith efforts to comply with the discrimination laws extends beyond sexual harassment. It is now fairly commonplace for courts to examine whether an employer’s compliance efforts included appropriate and effective training on whatever type of discrimination or harassment is involved in a case.

  In a racial harassment case, for example, the question is whether the employer provided training on racial harassment. If the case involves failure to accommodate under the Americans with Disabilities Act (ADA), the relevant consideration is whether the employer trained supervisors on the employer’s obligation to reasonably accommodate.

  It is impossible to know in advance what types of claims might arise, so ideally, training should cover all of the following:

• Harassment based on all legally protected categories
  
  (race, color, sex, religion, national origin, age, disability, etc.).
  
  
• Antidiscrimination laws in general.
  
  
• Reasonable accommodation and inquiries under the ADA.
  
  
• Investigative technique.
  
  In discrimination and harassment cases, courts frequently will review the quality, thoroughness and timeliness of the employer’s investigation. Thus, it is not unusual for plaintiffs’ attorneys to attack investigators’ credentials. Accordingly, it has become increasingly important for employers to train HR professionals and supervisors on how to conduct investigations, how to interview witnesses, how to document findings and how to implement corrective action.

If an investigation is perceived as inadequate, the responsible HR professionals and supervisors may find themselves serving as key witnesses for the other side. Plaintiffs’ attorneys are now grilling the employers’ internal investigators—who are more accustomed to serving as witnesses on behalf of the employer—to ascertain the extent of their legal knowledge and their investigatory skills and credentials.

• Frequency and currency.
  
  A relatively new issue courts are considering is whether training is frequent enough or recent enough. Although there is no magic formula, there are certain rules of thumb. First, employers should provide basic harassment and discrimination training to all new employees as soon as possible after hire. Second, supervisors should receive supplemental training on special supervisory obligations as soon as possible after becoming supervisors. Third, refresher training should occur at regular intervals (such as every one to two years for supervisors and every one to three years for all employees). Fourth, the employer also should provide refresher training when special circumstances arise. These might include material changes in the employer’s harassment or discrimination policies, an uptick in internal harassment or discrimination complaints, significant changes in the law, or acquisition of a new division or subsidiary.

  It is not enough just to provide training; training must be “effective,” some courts say. But so far, they have not provided any definitive guidance on what amounts to effective training. Plaintiffs’ attorneys have latched onto this, using “lack of effectiveness” as a new line of attack.

  Employee advocates may question whether the trainer was a true subject matter expert with sufficient knowledge of the law.

  Training materials may fall under attack: Do they include the necessary content and accurate statements of the law? (Legal inaccuracies are lightning rods for criticism.) Do they adequately explain the meaning of “unlawful harassment” and “unlawful discrimination”? (These fairly complex issues frequently are oversimplified in training materials.)

  Employers should review materials for possible “admissions against interest” -- for example, categorical statements that certain conduct constitutes unlawful “harassment” when in fact it might not. These can come back to haunt you. Make sure printed or online materials include a date, making it possible to determine readily what materials were used during the relevant time period.

  Some other common problems with training materials that make them vulnerable to challenge are failure to provide supervisors with supplemental information on their special obligations under both the law and the employer’s policies, failure to provide easily understood tips to nonsupervisory employees on how to avoid being harassed, and failure to cover the types of corrective or disciplinary action that could be imposed for violations.

  The duration of the training program might be an issue: Was it adequate to discuss the subject matter? Also, the training results could prove to be problematic: Did the employer measure whether the training was effective through use of a quiz or other device?

  Beyond these basics, opposing counsel are using more and more creative weapons to attack the sufficiency of the employer’s training. Here are a few:

• Comparisons.
  
  Plaintiffs’ attorneys may attempt to undermine the employer’s commitment to training or the adequacy of its training materials by comparing the employer’s harassment and discrimination training to other types of employer-provided training. Is the employer investing less money on harassment and discrimination training than on other subjects? Is the training shorter or provided less frequently than that provided on other topics? Does it fail to measure competency when other types of training have a quiz or test at the end? Is the training optional while other training is mandatory? A “yes” answer to any of these questions supports an argument that the employer’s training is not adequate and lacks appropriate senior management commitment.
  
  
• Cheesy marketing materials.
  
  Creative plaintiffs’ counsel can potentially have a field day with marketing materials used with off-the-shelf training materials that say things like: “You can prevent harassment claims with our 20-minute harassment training module!” Or “Make your supervisors experts on harassment for the low price of $99!”
  
  
• Lack of “face time.”
  
  Opponents will look for statements in training materials regarding management’s level of commitment to preventive training. They will ask questions such as the following: whether a senior-level person was present to introduce the trainer and the topic; whether all high-level employees were participants; and whether senior managers were required to take a quiz or competency test. In short, they will try to ascertain whether top-level management is “walking the talk” or simply paying lip service to training efforts.
  
  
• Custom vs. off-the-shelf.
  
  Plaintiffs’ attorneys sometimes argue that training customized to the employer’s workplace and industry is more effective than standardized solutions. They attack the effectiveness of any training that does not incorporate the employer’s own harassment and discrimination policies as a key element. They will point out the absence of workplace-relevant examples of acceptable and unacceptable conduct as a training weakness.
  
  
• State of the art.
  
  Myriad training formats—both high- and low-tech—are available. Hybrid or blended training, which combines traditional classroom training with other media (videos, web-based training, slide presentations, etc.), currently is in vogue. Interactivity—active participation by trainees—is key. Training experts generally consider hybrid training to be the best, so employers that use any other format risk having it challenged as less than the best.
  
  
• Metrics.
  
  Although it can be difficult to measure the effectiveness of training, employers still should do so. Otherwise, they face a challenge in trying to prove that the training was in fact effective. Even where an employer includes a quiz or some other method of measurement, plaintiffs’ counsel may still try to attack the effectiveness of the training. For example, if the employer does not require a 100 percent passing score on any quiz, the claimant’s attorney will try to argue the training can’t possibly be effective. The argument is that anything less than 100 percent is evidence of a failure to learn. The length and complexity of the quiz are scrutinized in some cases. If it’s too basic and short, claimant’s counsel tries to argue that it doesn’t really measure anything at all.

Another offensive strategy is to compare the advice provided in the training to actual practices: Are employees and supervisors behaving as called for by the training? Or are there still too many internal complaints of harassment or discrimination after the training is conducted?

An Ounce of Prevention

If all employers had unlimited financial resources, manpower and time, they could put together some pretty impressive, razzle-dazzle training programs. Although most employers may not be able to afford show-stopper training, they should be able to avoid many of the training weaknesses identified in this article with relatively easy and cost-effective fixes. Investing a reasonable amount of time and money now to develop legally sound training programs, to have existing ones reviewed for legal sufficiency, and to ensure that trainers and investigators have subject matter expertise may save substantially more in attorneys’ fees and defense costs down the road.

Editor’s Note: This article should not be construed as legal advice or as applying to specific factual situations.

Sue K. Willman, SPHR, is an employment lawyer in the labor and employment practice group of Spencer Fane Britt & Browne LLP in Kansas City, Mo. She has more than 25 years of combined experience as a human resources professional, in-house human resources counsel and private practitioner.