Questions to Ask Sexual Harassment Training Providers

Many training companies have wandered into the compliance space to offer sexual harassment training. Unfortunately, many training companies do not have internal legal expertise, so they often provide training that does not comply with detailed federal guidelines and state and local harassment training laws. Even when training is compliant when first produced, if the training provider does not continually monitor federal, state, and local laws, the training can quickly become noncompliant. To ensure that the sexual harassment training you choose is legally compliant, you should ask all potential training providers the following questions regarding training compliance:

State laws and court decisions from around the country require employers to ensure that their training is developed and delivered by experts in harassment and discrimination law. For example, California’s mandatory sexual harassment training laws (SB 1343, AB 1825, SB 396, and AB 2053) mandate that compliant sexual harassment training must be provided by training providers who have “expertise in the prevention of harassment, discrimination, and retaliation.” Moreover, training providers must also have expertise in the prevention of “harassment based on gender identity, gender expression, and sexual orientation.”

Under California law, the trainer provider must be an attorney, professor, instructor, human resource professional, or harassment prevention consultant with at least two years of employment law or harassment prevention expertise.

Traliant’s in-house legal expertise ensures that the training is legally accurate and updated when the law changes. Traliant’s, Michael Johnson, is one of the leading experts on harassment law in the country. A former U.S. Department of Justice attorney and a Harvard Law School graduate, Michael brought one of DOJ’s first class-action style sexual harassment lawsuits. He has provided training and consulting on harassment prevention and investigation topics for organizations around the world, such as the EEOC, Google, FedEx, the United Nations, and the World Bank. Michael leads our internal team of other Traliant attorneys, several of whom have experience working with large employment law firms.

Several states, such as California, Connecticut, Illinois, and New York, require online sexual harassment training to be “interactive.” In some states, interactivity requires online training providers to provide a means for users to submit questions and receive answers promptly.

Not just anyone can answer the questions. For example, in California, questions may only be answered by someone who meets the expertise requirements discussed above. The training provider must maintain all written questions received and all written responses or guidance provided for two years from the response date.

You should ask any potential sexual harassment training provider the following questions:

• How does your online training allow users to submit questions?
• How do you ensure that all questions submitted are answered within the required time frame?
• Which persons are charged with answering these questions, and how do they meet the expertise requirements?
• How do you maintain all written questions received and the written responses provided?

Traliant’s online sexual harassment training allows employees to submit questions online at any time. For no additional cost, our in-house Compliance Advisory Team’s employment lawyers answer all questions promptly and within one business day at the latest. We notify our clients of all questions submitted and the answers provided. If an employee raises an issue necessitating client input, Traliant will consult with the client before delivering its response. Traliant maintains records of all questions submitted and answers provided. (If the client prefers, Traliant will set up its Q&A service so that the client can answer the questions.)

Harassment prevention training is not a one-time event. Nationwide, EEOC guidelines indicate that employers should provide harassment prevention training “periodically.” For most employers, that means training employees once a year or perhaps once every two years. Periodic training can help employers raise an affirmative defense and avoid punitive damages in employee lawsuits. For example, in Fuller v. Caterpillar, Inc., the court held that the employer could avoid liability and punitive damages in a harassment case because it had made good faith efforts to prevent harassment. The court noted that during a two-year period, the company had twice provided harassment prevention training.

Certain jurisdictions specify retraining requirements. For example, California and Delaware require retraining at least every two years while Illinois, New York State, and New York City require retraining every year.

While employees should receive periodic refresher training, it should not be the same training. Employees do not want to watch a rerun of the sexual harassment training they took last year. Consequently, each year Clear Law Institute provides updated training so that employees never have to take the same course twice.

Nationwide, the Americans with Disabilities Act requires employers to ensure that employee training is accessible to users with disabilities. In the context of sexual harassment training, certain jurisdictions, such as Illinois, specifically require that sexual harassment training be accessible. Traliant ensures that its online training is accessible to users with disabilities. Indeed, Traliant offers harassment prevention training that meets the strict requirements of Section 508 of the Rehabilitation Act and the requirements of the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA Success Criteria. Among other things, Clear Law’s online courses include:

• closed captioning for users with hearing impairments
• screen-reader access for users with visual impairments
• ability to take the training without using a mouse for users with visual impairments
• avoidance of flickers in the content that can trigger photosensitive epilepsy

Courts have now made clear that employers must provide harassment and discrimination training that is legally accurate. See, e.g., Cadena v. Pacesetter (10th Cir.). Employers must also provide training that complies with federal harassment laws and state laws that often are more stringent than federal law.

Several jurisdictions—including California, Chicago, Connecticut, Delaware, Illinois, Maine, New York, New York City, Puerto Rico, and Washington—require specific training content. Some jurisdictions require minimum time requirements.

Traliant’s internal Compliance Advisory Team, which is made up of employment law attorneys, ensures that our training is legally accurate and compliant with the laws in all jurisdictions.

Harassment training that is compliant when produced can quickly become outdated or inaccurate. Traliant’s internal Compliance Advisory Team continuously monitors the enactment of new laws and the continual interpretation of existing laws by courts around the country. If the law changes in a way that impacts the training, Traliant will promptly update your training at no extra cost. In this way, Traliant ensures that all employees receive accurate and up-to-date instruction.

Given that many training companies don’t have internal legal expertise, they often are unaware of new legal developments. If a training provider asserts that it relies on an external lawyer to notify it of required legal updates, you should ask the following:

1. Who is the attorney, and what are their credentials?
2. Are you paying the attorney to monitor the law in all states where you operate so that the training can be immediately updated as the law changes?
3. Is the attorney willing to indemnify the training company and the client if the training is found to be non-compliant with legal requirements?

While some training providers may assert that they keep their training up to date with legal changes, you should ask for proof about what changes they have made. Traliant makes dozens of changes to its training materials every year. Sometimes these changes reflect new U.S. Supreme Court or lower court decisions. They often involve changes to state statutes or regulations, such as the addition of protected characteristics under harassment and discrimination laws. Clear Law has designed its training to make updating content seamless with no impacting users in progress.

While some state laws specifically require that employers provide training on sexual harassment prevention, your training should also cover all forms of unlawful harassment, retaliation, and abusive conduct.

Employers are obligated to take the steps necessary to prevent all forms of harassment, as well as retaliation. Failure to do so increases employer liability risks. For example, in Reed v. Cracker Barrel Old Country Store, the jury found that although the plaintiff proved her case of sexual harassment, the employer was not liable because it had made reasonable efforts to prevent harassment, including providing sexual harassment prevention training. However, the jury also found that the employer retaliated against the plaintiff and awarded punitive damages for the retaliation. The employer argued that its training and other efforts to prevent sexual harassment should also protect it from punitive damages against retaliation. The court disagreed. According to the court,

“Title VII clearly prohibits more than sexual harassment….[and] punitive damages are also available under Title VII for more than just sexual harassment….[An employer’s] good-faith compliance must relate to the specific claim being raised under Title VII. (emphasis added).”

In addition, statutes such as those in California and Puerto Rico require employer harassment prevention training to address all harassment as well as “abusive conduct,” commonly referred to as “bullying.”

Traliant’s online sexual harassment training includes the topic of bystander intervention. EEOC Guidelines recommend, and Chicago and New York City laws require employers to provide training on this topic. Because researchers have found that bystander intervention training can be an effective tool to reduce workplace harassment, Clear Law addresses this topic in all harassment course versions.

We also offer a 1 hour version of Bystander Intervention training to comply with Chicago’s Human Rights Ordinance.

Pass-fail tests in sexual harassment training can create significant legal headaches. At what level do you set the pass rate? If an employee fails the test, what do you do? Do you train the employee again? What if two months later, the employee harasses a co-worker? Have you just given the plaintiff’s attorney evidence that you knew that the employee did not understand the harassment laws or your policy, but you did nothing?

For this reason, Traliant’s training does not provide a post-test that allows employees to fail. Traliant has developed a unique assessment mechanism to ensure that each user masters the course content without allowing anyone to fail.

You should ask all potential training providers the following questions relating to course versions and languages:

State and local sexual harassment training laws require specific training content, which varies by jurisdiction. As a result, employees must receive training specific to where they work. While some training providers create a different course version for each state that requires specific content, this approach creates an administrative nightmare for the employer needing to roll out training across the country.

With Clear Traliant’s innovative course design, users select where they work to receive location-specific information in individual modules. With this approach, multi-state employers can comply with all state and local harassment training laws using a maximum of three course versions.

• Fundamentals (45 minutes): For supervisors and non-supervisors in all states, other than California and Connecticut
• Extended (1 hour): For California non-supervisors and non-supervisors in Chicago
• Advanced (2 hours): For California and Chicago supervisors and Connecticut supervisors and non-supervisors

We also offer a 1 hour Bystander Intervention training for supervisors and non-supervisors in Chicago.

As noted above, the 45-minute Fundamentals Version is taken by both supervisors and non-supervisors. Some jurisdictions require that non-supervisors also receive training on supervisors’ duties. It’s also a good idea to have non-supervisors understand supervisors’ responsibilities to prevent and report workplace harassment. Providing everyone with required supervisory content makes it easier to deliver the training since you don’t have to determine who is considered a supervisor in each state under harassment and discrimination laws. Finally, if an employee is promoted to a supervisory position, they don’t need to be retrained as they’ve already received the supervisory content.

While we recommend that employees receive the 45-minute course version (except where 1 hour and 2-hour courses are required), we offer a 20-minute “Essentials” version. Employers most often use this version for employees in jobs with very high turnover.

In some jurisdictions, employers must customize sexual harassment training to specific industries and job duties. For example, in Illinois, restaurants and bars must provide training that addresses the particular harassment issues that can arise in those environments, such as harassment by customers. Traliant offers sexual harassment training for restaurants and bars.

Also, in Illinois, licensed professionals, such as nurses, real estate agents, and dozens of other categories of professionals, must receive annual one-hour sexual harassment training that addresses specific content. The Illinois Department has approved Traliant’s one-hour course of Financial and Professional Regulation (IDFPR).

Employers that operate in other countries should also provide sexual harassment training to employees around the world. Traliant offers a 45-minute harassment prevention training course for international employees. Among other things, this version removes references to U.S. laws.

Traliant offers online sexual harassment training in the following languages: English, Spanish, French, German, Simplified Chinese, Japanese, and Korean.

Upon request, we can provide the training in any language.

You should ask all potential sexual harassment training providers the following instructional design questions:

Sexual harassment training should be legally accurate, but never legalistic. Your employees don’t care about the history and theory of the law. Instead, they want to learn the practical skills they need to comply with the law. Traliant rarely cites cases or statutes in its training. Instead, Traliant’s courses:

• distill the statutes, cases, and regulations into clear behavioral principles
• teach employees those behavioral principles, and
• require employees to apply those principles to the nuances of real-life scenarios that they may encounter in the workplace.

Instead of providing a simplistic list of obvious “do’s” and “don’ts,” sexual harassment training should focus on exploring the more complex “gray area” situations that are more common in the workplace. Traliant‘s training includes the basic principles but focuses on the gray areas. As a result, employees find the training intellectually interesting, and they leave the course with knowledge that they didn’t have before. Thus, they feel like they learned valuable information rather than sat through a lecture.

Online sexual harassment training should be highly interactive and include numerous engaging exercises that help employees explore the nuances of the law and your organization’s prohibition against workplace harassment.

Traliant’s sexual harassment training includes numerous scenarios that depict complicated situations that employees may face in real life. Key issues raised by the scenarios are discussed, and guidance is given on potentially problematic behaviors. Interactive exercises then allow learners to apply what they have just learned.

Traliant customizes its clients’ courses to reflect the organization’s work environment and specific policies. For example, Traliant’s courses are tailored to clients in the following ways:

• The client’s logo appears on each page of the course.
• The introduction section of the course includes:
  • an audio or video message from an official with the organization explaining the importance of the training, and
  • photographs of the organization’s employees and workplaces.
• The courses provide employees with information on the organization’s specific policies and reporting procedures.

In addition, clients may further customize our training to look even more like their work environments. For example, Traliant can customize scenarios to take place in the client’s workplace. We can even add scenarios to a course to deal with issues about which the client is particularly concerned. Our online courses utilize a sophisticated “green screen” technology that allows us to make such changes quickly and inexpensively.

As some jurisdictions require employers to distribute their harassment prevention policy periodically, Traliant can include your entire policy within the training. Users can be required to certify that they have read and understood your harassment policy, which is included in the training.

You should ask all potential training providers the following questions:

Traliant’s online sexual harassment training can be completed on a computer, tablet, or smartphone. You can start the training on one device and complete it on another.

Employees need not complete one of Traliant’s online courses in one sitting. If they exit the course, their place will be saved. When they return to the course, they will return automatically to where they left off.

Clients can choose to either access the courses from Traliant’s learning management system (LMS) or on the client’s own LMS. Traliant can quickly and easily integrate its courses with any AICC, SCORM, or Tin Can compliant LMS and has done so hundreds of times on dozens of different LMS’s.

Traliant offers clients the use of its learning management system to run courses and track course completion. Our LMS provides clients sophisticated and user-friendly features for both the learner and administrator. Rolling out courses and ensuring 100% completion is a breeze with this LMS.

Employers do not want to be burdened with handling technical support questions. Unfortunately, many training providers do not provide technical support to end-users. Thus, users with technical issues end up calling HR.

In contrast, with Traliant, your employees can call, chat, or email our internal technical support employees to receive live technical support. Fortunately, because of our training’s user-friendly design, the step-by-step instructions provided to employees, and Clear Law’s commitment to continuous improvement, the number of technical support calls Traliant receives is remarkably low.

Traliant makes delivering the course to your employees effortless. We will either:

• notify your employees of the need to take the course and send you periodic reports on who has completed the course; or
• train you in 10 minutes to administer our robust but user-friendly Learning Management System (LMS).

Traliant has provided online training to tens of thousands of employees who don’t have email addresses. We have developed an easy way to give these employees easy access to training and have their training completion recorded.

Network administrators almost always resist implementing courses that include extensive use of full-motion video because video can hog the organization’s network bandwidth and slow the network to a crawl. Extensive use of full-motion video can also lead to completion tracking issues.

Rather than using full-motion video in its course scenarios, Traliant uses a combination of audio and streaming digital photos to simulate video. This technology both avoids bandwidth issues and also looks more professional than full-motion video.

Even though Traliant’s course electronically tracks who has completed the course, each employee has the option of printing out a certificate of completion to keep for his or her records. Course managers also can view completion reports and download completion certificates from within our LMS for anyone who has completed the course.