Is your organization ready to meet these new training requirements?

The United States Equal Employment Opportunity Commission (“EEOC”) is the federal agency tasked with enforcing federal equal employment laws (such as Title VII of the Civil Rights Act of 1964) on behalf of the United States Department of Labor. Among the EEOC’s many duties, it investigates, conciliates, and brings lawsuits on behalf of plaintiffs who feel they have been harassed or discriminated at work because of their membership in, or association with, a protected class. Although the EEOC does not technically make law because it is charged with enforcing the law, its publications and guidance are of particular importance to employers, employment lawyers, and harassment training providers alike.

Enforcement Guidance Released in Late 2023

In late 2023, the EEOC released its Proposed Enforcement Guidance on Harassment in the Workplace, and that guidance provides a glimpse into the collective brain of the agency as to what its focus will be going forward. Unsurprisingly to many, workplace harassment policies and training programs, which form the backbone of the “reasonable care” affirmative defense that was established by the United States Supreme Court in Meritor Savings Bank, FSB v. Vinson, 106 S.Ct 2399 (1986), have come under intense scrutiny in recent years, and the EEOC has made a point of emphasizing the need for meaningful education to satisfy the affirmative defense.

The Reasonable Care Affirmative Defense

Without going into the details of the nearly 40-year-old Vinson case, the Court stated that an employer can avoid liability for a claim of sexual harassment if two prongs are met. First, an employer must show it exercised “reasonable care” to avoid harassment (and eliminate it when it might occur); and second, the employer must be able to demonstrate the complaining employee failed to use “reasonable care” to take advantage of the employer’s safeguards and otherwise prevent harm that could have been avoided.

The Vinson case was the catalyst for an initial surge in crafting policies and creating rudimentary forms of education on the topic as a means of attempting to avoid liability. Many of these policies simply stated that employers “do not tolerate” sexual harassment and attempted to support those policies with some documents providing a definition of what sexual harassment is. Unfortunately, many employers are still using such basic means of harassment policy and education, and the EEOC has made clear it will be on the lookout for ineffective policy and education and will be arguing to the courts that those programs that do not meet its standards cannot allow an employer to avail itself of the affirmative defense.

EEOC Sets the Groundwork for a Minimally Effective Harassment Prevention Program

Before considering the liability implications of providing ineffective harassment training, employers should first consider the net positive impact of a workplace culture where employees know how and where to report misconduct and are confident the employer will do something about those concerns. Also, employees have come to expect some personal benefit from harassment education. While many employers keep the liability elements of their education programs front of mind, it is also important to heed the EEOC’s proposed guidance with the understanding that the time you take to educate your workforce should be spent on positively influencing the workplace culture and preventing incidents.

In its proposed guidelines, the EEOC mentions the importance of an “effective” policy and training program as fundamental to establishing the first prong of the affirmative defense. The agency states that for training to be effective, it must, at a minimum, have the following features:

• It explains the employer’s anti-harassment policy and complaint process, including any alternative dispute resolution process, and confidentiality and anti-retaliation protections;
• It describes and provides examples of prohibited harassment, as well as conduct that, if left unchecked, might rise to the level of prohibited harassment;
• It provides information about employees’ rights if they experience, observe, become aware of, or report conduct that they believe may be prohibited;
• It provides supervisors and managers information about how to prevent, identify, stop, report, and correct harassment, such as actions that can be taken to minimize the risk of harassment and clear instructions for addressing and reporting harassment that they observe, that is reported to them, or that they otherwise become aware of;
• It is tailored to the workplace and workforce;
• It is provided regularly to all employees and;
• It is provided in a clear, easy-to-understand style and format.

The EEOC also notes, “The first prong of the defense will not be established if evidence shows that the employer adopted or administered the [program] in bad faith or if [it] was otherwise defective or dysfunctional.” This guidance appears to call out those (often legacy) programs of education that simply have not been updated in many years.

Going well Beyond the Minimum is Critical to Maintaining a Healthy and Positive Workplace Culture

Employers must keep in mind that the EEOC’s minimum thresholds for establishing affirmative defense have nothing to do with the many state mandatory training requirements that are in effect. They also do little to get to the critical issue in the modern workforce of establishing and maintaining a healthy workplace culture through various programs of education offered throughout the year. Meeting the EEOC’s minimum thresholds may help establish the Vinson affirmative defense, but if that is the only consideration when choosing a training program, employers are certainly missing the benefit of incident prevention and workplace culture improvement.