10.22.2009The need to provide mandatory employment law training has been recognized now by most employers in the United States. Although California, Connecticut, and Maine are the only states requiring workplace harassment training by statute, employers in other states have followed their lead in an effort to reduce liability for ill-informed behavior of employees, decrease the cost of litigating complaints of harassment, and create a more hospitable environment for employees to be productive workers. Under federal law, the so-called Faragher/Ellerth defense states that when no tangible employment action is taken, an employer can raise an affirmative defense to liability by proving two elements: “(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” A tangible employment action requires an official act of the company “by which the supervisor brings the official power of the enterprise to bear on subordinates.” Since the emergence of the Faragher/Ellerth defense, federal and state court decisions have continued to conclude that workplace harassment training is a vital component in establishing an affirmative defense in harassment litigation and reducing punitive damages in discrimination litigation. To assert the Faragher/Ellerth defense, an employer must not only train a company’s supervisors regarding harassment but ought to show an express anti-retaliation provision and the availability of several complaint channels for reporting the harassing conduct. The Faragher/Ellerth defense is not and should not be the exclusive source in an employer’s attempt to lessen claims of discrimination as the defense pertains mainly to allegations of sexual harassment. Courts have consistently held that providing training on sexual harassment is not sufficient for an employer to prevent other types of unlawful harassment. In an effort to combat other claims of discrimination, employers have incorporated mandatory diversity training along with other employee training initiatives. This training addresses not only the traditional notions of diversity, (e.g. race and gender relations), but encompasses issues of disabilities, sexual orientation, religious differences, and age. Diversity training provides employers with both more protection against claims of discrimination and an enhanced opportunity at expanded success with their business in the global marketplace. The implementation of employment law training has evolved from a standard, traditional classroom experience to live on-line training. The key element in either format is the participant’s interactive participation with the instructor and the instruction. Live on-line training is a more time and resource efficient method as it teaches the same principles that the live instruction would but at a much lesser cost. With live on-line training, employers are not burdened with financing materials necessary for classroom training (e.g. video, video equipment, live instructor). In addition, live on-line training allows for employees to absorb and engage the material presented more acutely as compared to self-study internet learning. Live on-line training maintains employees’ attention as they are engaged with a live person and can ask questions as the information is bestowed upon them. Invoking mandatory employment law trainings will be beneficial to the growth of a company and will deflect various claims of harassment. For additional information, please contact John C. Petrella. This alert is provided for educational and informational purposes only and is not intended and should not be construed as legal advice. It is recommended that readers not rely on this publication but that professional advice be sought for individual matters.