Providing employees anti-discrimination or harassment prevention training makes sense. It not only protects the employer from liability and especially punitive damages; it clarifies behavioral expectations and establishes a respectful work environment.

The U.S. Supreme Court’s ruling in Kolstad v. American Dental Association (1999) ruled that employers may avoid punitive damages for harassment and discrimination if they can show that a good-faith effort was made to prevent both. The Court defined good-faith efforts … “where employers are encouraged to adopt antidiscrimination policies and educate their personnel on Title VII’s prohibitions.”

California and Connecticut have very specific mandates for harassment prevention training. Several other states require such training for government employees. More importantly, courts are interpreting laws that make this training essential even in states with no legal requirement.

Having a policy is not enough. In Swinton v. Potomac Corporation (2001), punitive damages of $1million were awarded in a racial harassment case. While the company had an anti-harassment policy, it lacked any evidence of related employee education. Failing to train all employees forfeits the employer’s ability to raise an affirmative defense which exposes them to punitive damages.

Employers still doubting the necessity of training employees on discrimination and harassment prevention should review Faragher v. City of Boca Raton (1998). The Supreme Court stated employers can avoid liability in co-worker harassment cases when evidence of training is present.

When a supervisor is guilty of harassment, the employer is liable. However, the employer can avoid hostile environment liability as
long as no adverse action resulted from the harassment; the employer took reasonable action to prevent and correct the behavior; and the harassment victim failed to follow the complaint procedure.

Quality of training is increasingly important. Court decisions and the EEOC have made it clear that training should include all types of unlawful discrimination, harassment and retaliation. California is drafting regulations to define qualified trainers. The latest draft includes utilizing either an employment law attorney or an HR professional with two or more years of practical experience handling harassment complaints or advising about prevention. In the long run, harassment prevention training may prove to be a company’s most effective and least costly form of liability insurance.

Quality Of Training Reviewed In Court

• Training should include activities that assess a learner’s application and understanding of the content as well as numerous scenarios to engage the learner in the training.
• Annual training of all employees is recommended, though California currently only mandates supervisory training every other year.
• Court interpretations continually change and require a refreshed program. Subsequent programs can focus on new developments and policy changes.
• Videos with no interaction hardly qualify as a good faith effort .

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