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How can multi-state employers prevent workplace harassment

by Alex Miller
The legal landscape around workplace harassment prevention has become progressively more complex. What was once an easy territory for multi-state employers to manage, has now become increasingly difficult to navigate—putting organizations in danger of being out of compliance and posing significant legal risks.

Beyond federal guidance, a growing number of states have specific requirements for training designed to minimize harassment in the workplace. For companies operating in these states, or in multiple states, achieving and tracking compliance grows more and more challenging with each passing year.

Compliance is crucial and consequences can be severe

At the same time, compliance is crucial. The costs of legal action against a company can run into millions, or even tens or hundreds of millions in extreme cases. And that doesn’t even count the lost productivity, increased absenteeism, increased turnover, and other negative impacts associated with workplaces that fail to prevent harassment. Nor does it recognize the potentially severe harm to the well-being and long-term career of any person, who experiences harassment. On the other hand, creating a culture of inclusion, respect, and safety through harassment prevention training will not only mitigate risk, but it could also lead to greater overall organizational health.

This guide highlights some of the major differences among state requirements for workplace harassment prevention and offers tips on how multistate employers can streamline compliance.

Overlapping requirements and changing laws

The requirements of these laws can overlap in ways that are not easy to reconcile. CA requires two hours of training for managers every two years, and one hour for employees. Connecticut (CT) requires two hours for both. NY and Illinois (IL) require annual training, but without any duration requirement. NY and IL require training employees, who don’t reside in their states, but work a portion of their time there. Keeping track of these rules and ensuring that the right employees receive the right training at the right time can be a headache for a national HR organization.

It’s also worth noting that the substantive laws around sexual harassment are in flux. For many years, sexual orientation and gender identity were protected in states like CA and NY, but not at the federal level. That changed in the summer of 2020 when the Supreme Court issued its opinion in Bostock v. Clayton County, holding that Title VII of the Civil Rights Act of 1964, which is the federal law prohibiting sex discrimination and harassment, also protects gay and transgender employees. Overnight, effective anti-harassment training was needed to address these protections, so everyone would understand the rules.

Similarly, Federal and state laws have long required that offensive, unwelcome conduct be sufficiently “severe or pervasive” to rise to the level of legally impermissible harassment. Following a long history of court decisions finding harmful misconduct to fall short of this standard, reforming states have taken different approaches to correcting course. CA kept the standard but abrogated problematic judicial opinions in this area while emphasizing in statute that a single incident can rise to the level of harassment.

NY on the other hand got rid of the severe and pervasive standard altogether, instead allowed employers to prevail in hostile work environment claims, if they could show that the conduct in question does not rise above the level of petty slights and trivial inconveniences. These standards are not especially important when it comes to prevention. Employers should not tolerate any form of misconduct, regardless of whether it rises to the level of illegal harassment; however, states require training on them, and employers must make sure their training is up to date.


What multi-state employers must consider

This environment of overlapping and changing prevention mandates poses challenges to affected employer, especially those operating in multiple states with training requirements. For example, consider these questions:

  • If a manager in CT oversees employees in NYC, how often do they have to train?
  • Can a manager in NY be trained on the “severe and pervasive” standard for hostile work environment?
  • Does a CA employee need to be trained in bystander intervention techniques?
  • Can an IL manager receive training on other forms of harassment and discrimination as part of their sexual harassment prevention training?
  • Does an IL-based company need to train remote workers in New Jersey and Florida, and if so, do they have to take IL training?

7 states currently require sexual harassment training

California

All California employers, who employ 5 or more employees, must provide sexual harassment training to all employees every two years

AB 1825, which added Section 12950.1 to the California Government Code and relevant amendments to the Code (AB 2053, SB 396, SB 1343, SB 778, SB 530) as well as 2 CCR § 11024

Connecticut

Employers in Connecticut with more than 3 employees must provide sexual harassment training to all employees and all employers must provide training to supervisors

Conn. Gen. Stat 46a-54(15); CHRO; Conn. Agencies Regulations 46a-54-200-207; Connecticut SB 3 (2019)

Delaware

All Delaware employers, who employ 50 or more employees, must provide sexual harassment training to all employees every two years

Del. Code Title 19, 711A (g); House Substitute 1 for House Bill 360

Illinois

All employers in Illinois must provide sexual harassment prevention training once a year

Workplace Transparency Act (SB 75)

Maine

All employers located or doing business in Maine, who employ more than 15 employees, must provide sexual harassment training to all employees

Title 26 M.R.S.A., Section 806 & 807

New York

All employers must train all employees regarding sexual harassment once every year

NY State Budget, Part KK, Subpart E, Section 2 (S07057); Article 7, Section 201-g of the Labor Law; Stop Sexual Harassment in NYC Act Local Law 96 of 2018; NYC Adm. Code, Title 8, Chapter 1, Section 8-107 Subdivision 30; A08421

Washington

Hotels, motels, retail organizations, security guard entities, and property services contractors must provide sexual harassment training to specific employees

SB 5258; RCW 49.60
Source: Kantola Training Solutions
 

Other states also have statutes related to harassment training

  • Massachusetts, Rhode Island and Vermont encourage employers to conduct sexual harassment training for new employees and supervisors, within one year of hiring or promotion, and suggest minimum requirements.
  • Iowa, Oregon, Texas, and Wisconsin recommend employers provide some form of harassment training.
  • Colorado, Hawaii, Ohio, Oklahoma, Pennsylvania and West Virginia make recommendations, similar to the EEOC guidelines, that employers should develop appropriate sanctions, inform employees of the right to raise complaints and how to raise them, and develop methods to sensitize all concerned.
  • New Jersey case law points to harassment training: New Jersey has no specific regulations, but case law appears to make sexual harassment training mandatory if employer wants to raise an affirmative defense to a harassment claim.

Employers need a unified approach to training

Finally, in addition to substantive requirements for training content, these states have other requirements for how to deliver training. Employers opting for online training must navigate different times in seat, interactivity, retraining, and records retention requirements. What was once manageable policy training with a carve out for California has now become an overwhelming challenge for multi-state employers.

Given all these shifting rules, multistate employers should look for a unified approach to training that can streamline compliance across jurisdictions. Training employees in different states separately is not ideal and could lead to serious problems. Instead, employers should use the same training for all employees, with content tailored to the requirements of different jurisdictions as needed. This creates a shared experience around harassment prevention training that serves as a foundation for company policies.

But that’s only one part of what employers should look for when looking at harassment prevention solutions. The instructional experience should include high quality interactive content that makes a potentially tedious compliance exercise into a meaningful harm prevention program. Finally, employers must also go beyond legal rules and formalities to address the social and workplace problem of harassment.

Doing so will not only help achieve compliance, and reduce the risk of significant and severe consequences for the organization, but also change workplace perceptions in a way that elevates the organization’s culture, leading to a more harmonious, productive and inclusive work environment for all.

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