New state laws require sexual-harassment training.

In 2004, California joined Connecticut and Maine in statutorily mandating sexual-harassment training for supervisors. Large association employers (defined as those with 50 employees or more) in those states obviously must comply with the law. However, employers should be reminded that employees may, of course, file sexual-harassment suits whether or not the state in which they work requires the training. In addition, studies have shown that men and women view harassing conduct differently, with most harassers oblivious to how others perceive their actions. Consequently, these new laws serve as a significant reminder--even where sexual-harassment training is not statutorily required--that it is perilous not to provide it. In this column, Christine Kearns outlines the new laws on sexual-harassment training.

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Careful associations have been providing sexual-harassment and discrimination training to their managers for a number of years. The purpose is to educate all employees, and in particular supervisors, to minimize the risk that an employee will engage in or be subjected to wrongful conduct and to improve the association's legal position in the event that misconduct does occur.

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Studies show, however, that even when training results in a heightened awareness of the prohibition on sexual harassment in the workplace, men and women still maintain different views of harassing behavior, while most harassers are oblivious to the perception of their actions. In addition, most employees view inappropriate behavior by executives or supervisors far more seriously than by co-workers.

As a consequence, some states--California, Connecticut, and Maine to-date--have statutorily mandated training for supervisors relative to sexual harassment and how to avoid it in their workplaces. The training that is mandated by these new laws can serve as important preventive models for associations of all sizes regardless of the state in which they are located.

Requirements of the current law

The primary goal of any sexual-harassment policy is to prevent harassment and discrimination in the workplace. The U.S. Supreme Court and many state courts have mandated that such policies must be meaningful to be effective. Therefore, a useful sexual-harassment policy would include programs educating employees, especially supervisors, about their rights and responsibilities under the law.

The best policy would include a stated commitment to a harassment-free workplace; an understandable policy with respect to prohibited conduct; and a reporting and investigation process that appears to be, and in fact is, credible. Finally, and most important, the policy must be communicated effectively to all employees.

Statutes in California, Connecticut, and Maine now require two hours of effective, interactive classroom training for all "supervisory employees" every two years. These provisions apply to employers--and, in California, contractors--with 50 or more employees. "Supervisory employee" may include "any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action."

Content of harassment education

The statutes contain specific required elements with respect to the timing and content of training. All effective sexual-harassment training sessions, however, should be conducted by a top-quality educator, preferably from outside the organization, and include these elements:

* mandatory attendance and sign-in sheets for employer records;

* information and practical guidance regarding the federal and state law concerning the prohibition against, prevention techniques related to, and correction of sexual harassment;

* discussion of the remedies available to victims of sexual harassment (specifically that all complaints will be investigated by appropriate human resources, management, or legal personnel);

* assurance that there will be no retaliation against those who make a complaint;

* interactive classroom sessions with an educator, involving discussion of practical examples aimed at prevention of harassment (simply showing a video will not satisfy the requirement; there should be some discussion, or possibly even a quiz given at the end of the program that demonstrates interaction between the educator and participants); and

* open and mandatory involvement by executives and management, which sends a message that preventing sexual harassment is crucial to a stable working environment.

Remaining risks

The new laws do not impose strict liability on employers for alleged sexual harassment by a supervisor who was not trained properly. At the same time, employers should anticipate that sexual-harassment plaintiffs will cite any failure to comply with the mandatory training requirements as evidence that the employer failed to take all reasonable steps to prevent harassment from occurring.

Conversely, providing the required training will not insulate employers from potential liability for sexual harassment of any current or former employee or applicant. It will nevertheless provide a strong defense where an employee has failed to follow well-communicated procedures to complain or raise a concern. Indeed, where the procedures are communicated and followed with integrity and thoroughness, claims almost certainly will be reduced.

Implications for your association

Employers in states where the new laws are in effect can take a number of steps to meet the requirements. Most, if not all, of these could also apply to employers outside of California, Connecticut, or Maine as well as those not large enough (those with fewer than 50 employees) to be covered by the law.

* Update the association's policies regarding sexual-harassment training.

* Identify "supervisory employees," bearing in mind the broad definition that is likely to apply.

* Determine which supervisory employees already have had training, the nature of the training, and the date it occurred.

* Identify an appropriate educator, and select a format that complies with the strict requirements of the new statute.

* Consider whether to take advantage of the opportunity provided by the sexual-harassment training to provide an expanded educational program to supervisors, covering other types of issues related to equal-employment-opportunity practices.

* Budget for and schedule the requisite training programs.

* Keep written records of which employees have completed the mandatory training, the nature of the training that was completed, and the date of completion.

Benefits of sexual-harassment training

Providing effective sexual-harassment training will educate your association employees about what constitutes sexual harassment and what actions they might take--or not take--to avert it. Such prevention efforts are crucial to ensuring a successful, collegial working environment. At the same time, sexual-harassment training programs are necessary to stop claims from arising, not to mention the expensive proposition of defending such claims in court. These educational programs will be well worth the monetary investment if they help prevent even one incident or claim of sexual harassment.

CHRISTINE N. KEARNS

EDITED BY JERALD A. JACOBS

Christine N. Kearns is a partner in the Employment Practices Group and Jerald A. Jacobs is a partner and heads the Nonprofit Organizations Practice Group at Shaw Pittman, LLP, in Washington, D.C. Jacobs is general counsel to ASAE.