Are sexual harassment training programs truly effective? Lacking empirical data or qualitative studies, this is a difficult question to answer. However, the Supreme Court clearly views them as important, prescribing the programs as quasi-vaccines against the maladies of liability and damages. Three states even mandate them. In California, supervisors are required to be trained at least once every two years. They must get training within six months of assuming a supervisory position.
If an employer fails to meet the training obligation in California, regulations state that the Fair Employment and Housing Commission (FEHC) is permitted to enter an order of non-compliance against the employer and can require compliance within 60 days of the order. Regardless of training’s actual effectiveness, the employer should consider the possible litigation that may be brought against the employer by employees who may claim that the employer did not provide the requisite training.
Even if training is not mandated by law, insurance companies often force policyholders to give employees training conducted by human resources personnel or other consultants. This flows from the Supreme Court’s view that training acts as a safeguard. Still, there is little evidence that current training methods produce a consistent downward trend in sexual harassment cases. In California, where the mandatory training law was first passed, claims only went down for a short period before spiking upwards. In southern California, for example, sexual harassment lawyers in Orange County have certainly kept busy.
Some critics say that training just provides more education for opportunity seeking plaintiffs than potential harassers. Moreover, the training programs may actually encourage borderline conduct, teaching employees to walk a tightrope just short of sexual harassment. To some observers, these types of programs seem to be a training ground, forcing employees to distinguish boorish behavior from illegal conduct. For example, employees are often told to consider how many lewd remarks will cross the line, or how intimate a touching incident must be in order to be sexual harassment.
Other critiques with training programs as they exist today are that they seek the wrong goal, insulating employers from the consequences of what may be a hostile work environment. That is, training tends to focus on mitigating liability rather than preventing harassment. Trainers often emphasize the importance of measures that an employer should implement before or after the incident to minimize liability. The focus is often on whether the victim suffered tangible employment action, despite whether the victim subjectively suffered. Accordingly, these programs are out of line with what should be the true primary goal of creating a better workplace environment.
In southern California, a good sexual harassment lawyer in Orange County is in increasing demand because of the seeming failure of these training programs. No one denies that training is good, but many critics feel that it is ineffective in its current form precisely because of promoting the wrong goal of insulating employers rather than promoting a civil work environment. Accordingly, sexual harassment attorneys in Orange County are needed now more than ever to navigate this difficult area where a training program does not necessarily appear to be a true vaccine in practice. It is important for a sexual harassment lawyer in Orange County representing both the employer and the plaintiff to know what is at stake. Plaintiff’s attorney should understand that a training program and procedures do not necessarily mitigate an employer’s liability. The employer’s attorney must recognize the same in an advisory role, and might be wise to ensure the goal of using training to create a comfortable work environment that may better vitiate future harassment, likely resulting in less future claims.