Employers often use training to address problems among employees, as well as to mitigate their own risk of liability for unlawful employment practices like sexual harassment. New York law, at both the city and state level, will soon require employers to provide sexual harassment training to its managers, supervisors, and employees. The Equal Employment Opportunity Commission (EEOC) also recommends that employers provide trainings, even though federal law does not require them. When settling lawsuits, the agency often requires employers to provide trainings as part of the settlement agreement. Whether sexual harassment trainings are actually effective at preventing future workplace harassment, however, is an unsettled question. In an article published last year in Scientific American, a group of researchers raise this question and explore where change is needed.
Under new laws that have not yet gone into effect, many employers in New York will be required to provide sexual harassment trainings to their employees, including supervisory and managerial employees. The New York Legislature, as part of a budget bill passed in April 2018, added a new section to the Labor Law that requires the state to create “a model sexual harassment prevention training program,” and requires employers to use this program or create their own that meets the same standards.
A new law passed by the New York City Council will require employers with at least fifteen employees to provide sexual harassment training, but it does not direct the city government to create a model program. The law provides a detailed list of topics the training must cover, including the unlawful status of sexual harassment, examples of conduct constituting sexual harassment, company policies regarding reporting and investigating alleged sexual harassment, and complaint processes through government agencies.
The EEOC recommends sexual harassment training as a way for employers to mitigate risk. In an enforcement guidance document from 1999, the EEOC notes that training can function as both a “preventive” and “corrective” measure. Federal law gives employers an incentive to maintain internal policies for investigating allegations of sexual harassment. The Faragher-Ellerth affirmative defense allows an employer to avoid liability for sexual harassment if they can prove two elements:
1. The employer “exercised reasonable care to avoid harassment and to eliminate it when it might occur,” Faragher v. Boca Raton, 524 US 775, 805 (1998); and
2. The complainant “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.” Burlington Industries, Inc. v. Ellerth, 524 US 742, 765 (1998).
According to the Scientific American article, little research has been performed into the effectiveness of these training programs. Workplace training programs on topics like sexual harassment have become something of a punchline in popular culture, but the researchers state that they can be effective if they keep up with whatever current research does exist. The researchers recommend that employers have clear goals for trainings, and that they evaluate the impact of trainings on their workforce. More importantly, they stress that trainings and similar measures are only part of a solution to workplace sexual harassment. Serious changes to “institutional culture” are also necessary.
At Phillips & Associates, our employment attorneys advocate for the rights of New York City employees, former employees, and job seekers in claims for unlawful workplace practices like sexual harassment. Please contact us today at (212) 248-7431 or online to schedule a free and confidential consultation to discuss your case.
More Blog Posts:
Lawsuit Alleges Sexual Harassment, Retaliation by New York City Airport Security Contractor, New York Employment Attorney Blog,
Advocates Worry About the Impact of Supreme Court Decision on New York Employees with Sexual Harassment Claims, New York Employment Attorney Blog, July 2, 2018
New York Legislature and New York City Council Enact New Sexual Harassment Laws, New York Employment Attorney Blog, June 27, 2018