We all appreciate the practical importance of training. It can certainly help eliminate pesky and undesirable workplace issues. Heck, it can even help create a desirable workplace for employees.

Set aside the practical benefits of training – i.e., relaying fairly obvious no-nos to a room typically containing persons inexplicably unaware of obvious no-nos. Let’s talk about training from a legal perspective.

Title VII does not require employee or managerial training regarding discrimination, harassment or retaliation. Period. You can read the entire statute – you won’t find it. You can read the regulations, too. It’s not there, either.

The EEOC, however, has a lot to say on the subject, particularly in the context of a claim under Title VII for harassment or “hostile work environment.” Earlier this year, it issued its Enforcement Guidance on Harassment in the Workplace. Part of that Guidance expounds on the so-called Faragher-Ellerth defense created by the U.S. Supreme Court. The defense applies when a supervisor creates a hostile work environment that has a harmful impact on an employee but does not result in a tangible employment action such as termination, demotion, etc. The defense requires an employer to prove (1) that it exercised reasonable care to prevent and correct promptly any harassment, and (2) the employee unreasonably failed to take advantage of preventive or corrective opportunities to stop the harassment. The first prong of the defense implicates training.

According to this Guidance, “federal EEO law does not specify particular steps an employer must take to establish that it exercised reasonable care to prevent and correct harassment.” (True.) However, these steps “usually consist of promulgating a policy against harassment, establishing a process for addressing harassment complaints, providing training to ensure employees understand their rights and responsibilities, and monitoring the workplace to ensure adherence to the employer’s policy.” (Gulp.)

According to the EEOC, for training “to be effective, it should generally have the following features:

• it explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
• it describes and provides examples of prohibited conduct under the policy;
• it provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
• it provides supervisors and managers with information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment, and with clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
• it is tailored to the workplace and workforce;
• it is provided on a regular basis to all employees; and
• it is provided in a clear, easy-to-understand style and format.”

A Hobson’s choice: Effectively train or forfeit effective defenses

Make no mistake, should an employer’s path ever cross the EEOC’s, it will have to prove that it conducted such “adequate” training in order to avail itself of the Faragher-Ellerth defense. In other words, it seems pretty darn clear that the decision to conduct harassment training is a Hobson’s choice. An employer is not legally required to train on this topic but may forfeit effective defenses if it does not.

Employers are encouraged to train their employees regarding the prohibitions against harassment set forth in Title VII. And while you’re at it, go ahead and add in some slides on discrimination and retaliation. While we can debate the deference that will be afforded to federal agency regulations and guidance following the U.S. Supreme Court’s decision overturning Chevron, it must be anticipated that federal courts can and will continue to consider such guidance when construing claims involving Title VII. In short, employee and managerial training can both further important goals and preserve important legal defenses.

One quick caveat: There are some federal laws that specifically mandate employee testing. For instance, the laws governing drug and alcohol testing of employees in positions regulated by the U.S. Department of Transportation Motor Carrier Safety Administration (i.e., certain drivers) require “specific, contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the driver” before an employer can require a driver to submit to reasonable suspicion drug and/or alcohol testing. Such observations “shall be made by a supervisor or company official who is trained” in accordance with federal regulations, which require “at least 60 minutes of training on alcohol misuse” and “at least an additional 60 minutes of training on controlled substances use.” The training must “include the physical, behavioral, speech, and performance indicators of probable alcohol misuse and use of controlled substances.”