Sexual Harassment Training: Mandatory in Several States and Critical Nationwide

As of October 9, 2018, New York State employers are now required to provide sexual harassment training pursuant to the State’s recently enacted sexual harassment prevention legislation, Section 201-g of the New York State Labor Law. This new law requires that all employers within New York, both private and public, provide annual anti-harassment training to all their employees, which encompasses all workers regardless of immigration status, exempt and non-exempt employees, temporary workers, part-time workers, and seasonal workers. Employers must provide such training in the language actually spoken by their employees and must ensure that all employees receive their first sexual harassment training by October 9, 2019.

To comply with the new law, New York State employers must either implement the model sexual harassment prevention training program jointly developed by the New York State Department of Labor (NYSDOL) and the New York State Division of Human Rights (NYSDHR) or provide a training program that equals or exceeds the minimum standards of the NYSDOL/NYSDHR model. At a minimum, the sexual harassment training must:

(i) be interactive;

(ii) include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;

(iii) include examples of conduct that would constitute unlawful sexual harassment;

(iv) include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;

(v) include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and

(vi) include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

New York State, Minimum Standards for Sexual Harassment Prevention Training; see also N.Y. Labor Law § 201-g. [1]

Although the new law does not detail what constitutes “interactive,” the State’s Model Training Guide defines “interactive” as “requir[ing] some level of feedback by those being trained.” The Model Training Guide further states that “the training should include as many of the following elements as possible” to satisfy the interactivity requirement: “ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; require feedback from employees about the training and the materials presented.”

With the passage of this legislation, New York is now one of a handful of states that require employers to provide sexual harassment training. California, Maine, and Connecticut, each have laws mandating such training, and Delaware recently enacted a law requiring employers with fifty or more employees to provide sexual harassment training every two years. In addition, several states, including Massachusetts, Rhode Island, and Vermont, have laws that encourage, but do not require, employers to provide sexual harassment trainings.

What about those states without laws on the books regarding sexual harassment training? State and federal court decisions have highlighted that the lack of sexual harassment training can play a key role in liability and damages assessments, even where the statutes in question do not expressly require such trainings. For instance, the New Jersey Supreme Court has recognized training as a relevant factor when assessing an employer’s vicarious liability for sexual harassment. In Gaines v. Bellino, for example, the New Jersey Supreme Court stressed that “anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization” is one of “several factors . . . relevant to determining whether an employer acted negligently” in a hostile work environment sexual harassment action.

Likewise, numerous federal court decisions have underscored the importance of sexual harassment trainings. Notably, courts have repeatedly held that employers cannot escape punitive damages, where they fail to train their workers about sexual harassment. For example, in Hanley v. Doctors Hospital of Shreveport, a sexual harassment and retaliation lawsuit, the Second Circuit concluded that the evidence adduced at trial supported a punitive damages award, citing the lack of sexual harassment training as a factor demonstrating that the employer failed to undertake good faith efforts to adhere to Title VII. Relatedly, inEEOC v. the Management Hospitality of Racine, Inc., the Seventh Circuit upheld a punitive damages award even though the defendants ostensibly had a sexual harassment policy in place. Pointing to the defendants’ deficient sexual harassment trainings, the Seventh Circuit concluded that the defendants had failed to conduct good faith efforts to educate their managerial staff about sexual harassment and thus could not insulate themselves from punitive damages liability.

Moreover, federal courts have denied employers’ motions for summary judgment and allowed sexual harassment cases to proceed to trial, where plaintiffs pointed to inadequate or non-existent sexual harassment training. For example, in Pullen v. Caddo Parish School Board, the Fifth Circuit held that the lower’s grant of summary judgment had been improper, reasoning that the defendant’s failure to provide sexual harassment training to employees, among other things, created “a genuine dispute of material fact as to whether the [defendant] took reasonable steps to prevent sexual harassment.” In a similar vein, the First Circuit in Marrero v. Goya of Puerto Rico, Inc., denied judgment as a matter of law for the employer, where plaintiffs and other employees testified that they never received training on the company’s sexual harassment policy.

If you believe that you have experienced sexual harassment and are considering bringing a lawsuit, you should consult with an employment lawyer, who can assess the circumstances of your case. Sanford Heisler Sharp, LLP has experienced employment discrimination lawyers in New York, Washington, DC, Baltimore, San Francisco, San Diego, and Tennessee.

Footnotes

^{[1] New York City recently enacted its own sexual harassment prevention law, which is scheduled to go into effect on April 1, 2019. Unlike the State law, the New York City legislation requires that the sexual harassment training also provide information about bystander intervention.}