Harassment training? If you read the title out loud and heard groans from other people in your office, I understand. In fact, when I have done harassment training for clients, I have heard every complaint and bad joke about harassment training there is.
Harassment training is one of those dreaded exercises by employees and management alike. Indeed, harassment training has become comedy fodder for many a tv sitcom. My personal favorite is still The Office episode "Diversity Day" where a sensitivity trainer is sent out to the branch due to Michael's comments. A perfect what not to do lesson.
But while The Office may be funny, a real harassment claim is anything but funny for employers. Employers who provide regular training on their harassment and discrimination policies may be able to assert an affirmative defense to a claim of discrimination where an employee is aware of the policy and fails to report the harassment prior to filing a lawsuit.
Recently, the issue of training came up again in the New Jersey Appellate Division case Wallace v. Mercer County Youth Detention Center. In addressing when an employer could be liable where a non-supervisory co-worker commits the harassment, the Court re-emphasized the need for employers to not only issue policies but also to provide harassment training to its employees. The Court noted that providing harassment training, in addition to properly training those investigating the complaints on how to do a correct investigation, was critical to asserting an affirmative defense to liability.
In short, employers must make it clear to their employees, through training, that harassment of any kind will not be tolerated.
Although it may be possible to assert the defense even in the absence of training, providing the training is an easy fix. Generally, the cost to employers, both in terms of lost productivity while the employees are at training and any costs paid to a trainer, are minimal as compared to litigation costs.
Christina A. Stoneburner, Partner, is based out Roseland, NJ and can be reached at 973.994.7551 or cstoneburner@foxrothschild.com.
