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Over the past few months, with the incidents involving Harvey Weinstein, Matt Lauer, Kevin Spacey, and many others in the backdrop, numerous articles have emerged criticizing the effectiveness of anti-harassment training. Some have argued that sexual harassment cases demonstrate the ineffectiveness of internal mechanisms for reporting allegations. Others have claimed that traditional sexual harassment training methods can backfire. Despite these arguments, we believe that “live” training does prevent harassment and identifies situations that may be occurring in the workplace.
Our belief is consistent with the Equal Employment Opportunity Commission’s (“EEOC”) best practices, which recommends that harassment training be live and interactive whenever possible. The EEOC has also made statements that training is the most effective when reinforced regularly and conducted live by an interactive trainer.
Live training is significantly more powerful than “interactive electronic training” where employees are sitting at their desks using a PowerPoint presentation and checking off boxes. Some experts have concluded that interactive electronic training is successful only at teaching employees the basic information, such as the definition of harassment and how employees can report violations.
First and foremost, educating managers and employees on the tell-tale signs of harassment is critical. There is a reason “live” training is popular among employers who have the luxury of doing so, as a result of the manageable size of their workforce. Live presentations can be better customized to the actual audience (managers vs. staff; senior team vs. middle management). Further, live presentations facilitate more questions from the participants. Live presentations allow for exercises that bring home the abstract concepts to actual situations that resonate with participants. We include in our training case studies that are narrated by volunteer participants, so they feel more connected to the issues. Often at the end of our live sessions, employees or managers will talk to us or the Human Resources representatives, seeking individual assistance on situations that may be brewing.
Under the law, training in anti-harassment is very important, as the Supreme Court has stated in the decisions in Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth. This defense is known as the “Faragher-Ellerth defense” that employers can utilize when defending themselves against a sexual-harassment claim. When asserting such defense, the employer is arguing that it exercised reasonable care to prevent and promptly correct harassing behavior and that the employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. As a result, if the employer could show that it had trained employees on its anti-harassment policies, it could reduce or avoid liability.
We advocate live training because it is more effective than interactive electronic training. In addition, we recommend that all employers train their employees, not only to educate them about the borders of harassment, but also to provide for a defense and avoid liability under the Faragher and Ellerth cases.