Managing in the #MeToo Era: Are Employers Required to Conduct Anti-Harassment Training?

On April 11, 2018, the New York City Council passed a package of legislation referred to as the “Stop Sexual Harassment in NYC Act,” (“NYC Act”) which, if passed, will require covered New York City employers to, among other things, provide annual anti-sexual harassment training to employees.  The legislation now awaits the signature of New York City Mayor Bill de Blasio. New York City follows on the heels of New York Governor Andrew Cuomo’s signing the Budget Bill, which contained a new state law (“NY State Act”) requiring covered employers to provide annual anti-sexual harassment training to employees as of October 9, 2018.  For a more comprehensive discussion about the NYC Act and NY State Act, please see our LaborSphere blog. Also, employers will be receiving more guidance regarding what constitutes compliant training programs as New York City’s legislation, if passed, directs the NYC Human Rights Commission to develop an online interactive module that can be used to satisfy the law’s requirements.  In New York, the Commissioner of Labor and the New York State Human Rights Division are jointly compelled to create a model sexual harassment training program.

New York joins California, Connecticut, and Maine as states that require private employers to provide sexual harassment training to their work forces; however, there are some differences in training requirements among the different jurisdictions.  For example, California only requires training for supervisors but such training also must address harassment based on gender identity, gender expression, and sexual orientation, as well the prevention of abusive conduct.  Connecticut also mandates that only supervisors receive sexual harassment training.  However, Maine, New York and New York City (if NYC Act passes) mandate sexual harassment training for all employees.  Requirements regarding frequency of training also varies by jurisdiction. California requires training every two years.  New York and New York City, if passed, require annual training.  Employers in Connecticut, however, are only encouraged to update supervisors on legal developments once every three years.  Maine’s law does not address how often the training must occur.

There are also differences among the jurisdictions regarding how long such anti-sexual harassment trainings must be. Both California and Connecticut require two hours of training.  Maine, New York City, if passed, and New York, however, are silent in terms of how long the training sessions must last.  Timelines for training new hires/supervisors also varies depending on the jurisdiction.  Under NYC Act, if passed, employers must train new hires in New York City  within 90 days of their hire date.  Both California and Connecticut require that employers train supervisory employees within six months of their assumption of supervisory duties. Maine requires that new employees and managers receive training during their first year.  New York’s law does not address the timing of training for new employees.

There is some uncertainty among the jurisdictions about whether e-learning training, as opposed to live classroom training, satisfies the respective training requirements.  Connecticut and California permit the use of an e-learning program to satisfy its statutory requirements.  Maine’s statute does not specify.  As referenced above, the New York and NYC agencies will be providing more guidance on compliant training programs and may address e-learning training vs. live training.  Many employers use live training to emphasize their commitment to the prevention of workplace harassment and retaliation.  Live manager training can also help managers understand their role in preventing harassment, and more effectively respond to internal complaints of harassment.

We anticipate that more jurisdictions will enact legislation requiring private employers to provide sexual harassment training.  Delaware, for example, introduced House Bill 360 (“HB 360”) on March 29, 2018.  If passed, HB 360 would require private employers in Delaware to provide sexual harassment training to all supervisory employees within six months of their assumption of a supervisory position. HB 360 defines employee to include unpaid interns, volunteers, and people providing services pursuant to a contract. Thus, if an employer has unpaid interns, volunteers, independent contractors or consultants acting as supervisors, such employees would be subject to the training requirements. HB 360 requires employers to provide at least two hours of classroom training or other effective interactive training.  While HB 360 permits the use of interactive training, it does not define the term “interactive.”  Finally, if passed, HB 360 would mandate sexual harassment training for supervisors every two years.

Similar to Connecticut, Delaware, if HB 360 passes, includes under the definition of “employee” people providing services pursuant to contract, and takes it a step further to also include interns and volunteers. New York State protects contractors, vendors, and all other persons providing services in an employer’s workplace from sexual harassment and provides recourse under the New York Human Rights Law for violations.

Even if state law does not mandate training, employers are well-served to conduct training in all jurisdictions as such efforts may provide an affirmative defense to hostile work environment claims. In Faragher v. City of Boca Raton, the United States Supreme Court held that an employer has an affirmative defense to a Title VII hostile work environment harassment claim if: (1) it took no tangible adverse employment action against the plaintiff employee (e.g. firing, suspension, demotion); (2) the employer exercised reasonable care to prevent and promptly correct the harassing behavior; and (3) the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to otherwise avoid harm.

Some state courts have held that this affirmative defense (known as the Faragher-Ellereth defense) also applies to state law hostile work environment claims.  For example, in Aguas v. New Jersey, the New Jersey Supreme Court held that an employer may assert the Faragher-Ellerth defense in sexual harassment cases brought under the New Jersey Law Against Discrimination (“NJLAD  In the court’s opinion, formally allowing employers to raise this  defense “furthers the [NJLAD’s] purpose of eliminating sexual harassment in the workplace by motivating employers to maintain effective anti-harassment policies, and by encouraging employees to take prompt action against harassing supervisors in accordance with those policies.”  Notably, the high court confirmed that, “an employer that implements an ineffective anti-harassment policy, or fails to enforce its policy, may not assert the affirmative defense.”

Therefore, training the entire workforce serves the critical function of effectively reinforcing an employer’s commitment to preventing workplace harassment and retaliation.  Employers should also review their anti-harassment policies to ensure that they are clearly written and compliant with recent changes in the law.

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