Introduction

The #MeToo movement exploded in the fall of 2017 and put sexual harassment on the front pages of newspapers, websites and other media outlets. Since that time, #MeToo has inspired many people to come forward to tell their stories on sexual harassment and has continued to be relevant in a broad range of arenas from politics to entertainment.

Particularly relevant for many employers, is the fact that this movement has had and continues to have a huge impact on the number of sexual harassment claims brought by employees. According to data from the Equal Employment Opportunity Commission (the “EEOC”), sexual harassment claims are on the rise. In 2018, 7,632 EEOC charges were filed alleging sex harassment, which represents a 15% YOY increase and the EEOC filed 50% more workplace harassment lawsuits in 2018 compared to 2017.
 
As a result of the #MeToo movement, and in response to the increase in sexual harassment claims, many public and private employers have sought to address and curtail harassment issues through a variety of methods, including examining and revising sexual harassment policies and procedures, changing the workplace culture and increasing or revamping sexual harassment training. While sexual harassment training in particular has received a lot of attention lately, it is not a new remedy for curtailing sexual harassment in the workplace. Recent information informs us that there are problems associated with traditional sexual harassment training methods, but with certain changes, sexual harassment training can be much more effective.  

Problems with Traditional Sexual Harassment Training

The EEOC’s 2016 Study (the “2016 Study”) of harassment in the workplace found that training is a critical component of addressing workplace harassment. However, the EEOC and many other organizations have come to the conclusion that changes need to be made to traditional sexual harassment training in order for it to be effective.

The 2016 Study provides that some major issues with traditional sexual harassment training are that the training is:

• Narrowly focused on the legal requirements of proving sexual harassment and failed to address relevant, non-legal issues that could be causing the harassment;   
• “Off the shelf / one size fits all” training instead of being tailored to the particular needs of the company and its employees;
• Usually involved generic training videos;
• Was only for supervisors and upper management, which did not equip regular employees with the information they needed to speak up;
• Generally occurred one time instead of being required annually or on a regular basis; and
• Was an HR priority, not a company priority.

Ways to Rethink Sexual Harassment Training

EEOC’s Response

As a result of the 2016 Study, the EEOC created a “Training Program on Respectful Workplaces”. This program is divided in two sections: 1) Leading for Respect for Supervisors; and 2) Respect in the Workplace for all employees. Two key differences between the Training Program for Respectful Workplace and traditional training is that the new program focus on what employees should do in response to sexual harassment and requires participants to practice responding to various scenarios involving sexual harassment.

Ways Employers can Rethink Sexual Harassment Training

Employers may be asking, “Well, what methods actually work? How can sexual harassment training be more effective?” The answers to those questions are varied and should be tailored to the specific employer. There are however, several general ways that employers can make their sexual harassment training more effective such as:

• Creating training that fosters respect, civility and professionalism. This is an important factor in changing the workplace culture to one that does not tolerate sexual harassment. This also sends a strong message that the employer cares and wants their employees to be treated with respect.
• Tailoring training to the employer’s specific business and workforce. All employers are unique and have different challenges. When training is customized to the particular employer, it takes into account the uniqueness of its workforce and culture, and as a result, is more relatable and effective.
• Having interactive and engaging training that addresses real world examples (including web-based training). Many times it is not that people condone sexual harassment, but that they often do not know how to respond when sexual harassment issues arise. Incorporating real world examples in sex harassment training helps employees think about and discuss real-life scenarios that they may be faced with and gives the employer a chance to clear up any misunderstandings.
• Training regularly (e.g., annually). Employees should be required to take sexual harassment trainings at least once every year because the law is constantly evolving and regular training provides a refresher to employees regarding their continuing obligations.
• Training all employees, not just supervisors and upper management. This change allows the employer to address sexual harassment that occurs when no supervisors are present and empower employees because they will be more informed.
• Making training a leadership priority. Leadership needs to set the example.  Employee buy-in will increase if leadership is supportive of sexual harassment training and having leaders who prioritize training increases the value that others place on training.
• Implementing or including bystander intervention training. Bystander intervention training prepares employees to take action when they witness harassing and discriminating behavior in the workplace. This gives employees the tools, knowledge and motivation to speak up and intervene to stop inappropriate behavior when they see it occurring and, hopefully, before it rises to the level of unlawful harassment.

Regardless of the particular method an employer uses to modify their sexual harassment training, it is important for employers to recognize that in order to be effective, training should be given serious thought and be tailored to the specific needs of the company.

Sexual Harassment Training Laws

In the wake of the #MeToo movement, state and local governments across the United States have increased focus on sexual harassment training. For example, California, New York (City and state), Connecticut, Maine, the District of Columbia, and Delaware have enacted laws and many other states have proposed legislation requiring mandatory sexual harassment training in the workplace. The current sexual harassment training laws vary and some focus specifically on certain industries, such as restaurants.

While Maryland does not currently have a law requiring private employers to conduct sexual harassment training, it does have a law requiring sexual harassment training for state employees. In 2018, Maryland passed § 2-203.1 “Sexual Harassment Prevention Training”. Under this law, “each state employee shall complete at least a cumulative two (2) hours of in-person or virtual, interactive training on sexual harassment prevention within: (i) six (6) months after the employee’s initial appointment; and (ii) every two year period thereafter.” § 2-203.1. The law applies to all units of the Executive, Judicial and Legislative branches of the government of the State of Maryland (the “State”), including units with independent personnel systems.  The required training must include: 1) information on the federal and State laws concerning prohibition of sexual harassment; 2) best practices in prevention and correction of sexual harassment, abusive conduct, and retaliation; 3) remedies and procedures available to victims of sexual harassment in employment; and 4) additional training for supervisors regarding properly responding to sexual harassment complaints, preventing abuse and retaliation, and creating and maintaining a workplace culture in which sexual harassment is not tolerated.

There is currently no indication that the Maryland legislature is considering expanding sexual harassment training requirements to private employers. However, given its enactment of the recent Sexual Harassment Disclosure law (Disclosing Sexual Harassment in the Workplace Act of 2018) [1] that took effect on October 1, 2018, the Maryland legislature seems to be taking a serious interest in preventing and addressing sexual harassment claims, which could soon lead to mandatory sexual harassment training for private employers in the State as well.  

Whether you are an employer or an employee working in the public or private sector, addressing and preventing sexual harassment through training and other methods should be a top priority as it is an important issue at the forefront of both state and federal governments and one that is not likely to go away anytime soon.

[1] This law invalidates an employment contract or policy that waives an employee’s right to sue in court for sexual harassment or retaliation; requires employers with more than 50 employees to submit a report detailing its settlements of sexual harassment claims; and prohibits employers from taking adverse action against employees who refuse to sign an agreement that requires mandatory arbitration of sexual harassment claims.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

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