States also passing laws limiting policies that might discourage reporting
Now one in five workers in the U.S. lives in a state that requires employers to offer sexual harassment training, up from one in 100 two years ago.
New York State’s law, which took effect this week, requires companies to educate employees on what constitutes harassment and make it easy to find and file complaint forms. California, Connecticut, Delaware, Washington, and Illinois have also passed or revamped laws in the last two years that expand training to more employees. Maine has had a comprehensive law on the books since 1991.
States have also passed laws limiting forced arbitration, non-disclosure agreements and other policies that might discourage an employee from reporting harassment.
Most companies already offer sexual harassment training of some sort. But it often exists to protect employers from lawsuits and focuses on teaching people to spot, rather than eliminate, bad behaviour.
“Much of the training done over the last 30 years has not worked as a prevention tool,” a 2015 Equal Employment Opportunity Commission taskforce found. Traditional courses, studies have found, don’t do much more than teach people the definition of harassment.
After #MeToo, the focus is shifting from detection to prevention, says Kevin Kish, director of the California Department of Fair Employment and Housing, which enforces the state’s harassment laws.
“Training is moving away from ‘is this harassment or is this not harassment?’ to ‘harassment is wrong, we don’t tolerate it, here’s what we expect,’” he said.
The New York law has standardized training requirements and the state outlines the minimum information a company must share with workers so they understand their rights. In particular, the training should explain that employees can download and submit a complaint directly through the state’s website.
“Including a complaint form in your policy is sending a message to people that ‘we expect you to complain, you can complain, and here’s an easy way to do it,’” says Elizabeth Tippett, an associate professor at the University of Oregon School of Law, who has studied the history and evolution of harassment training.
New York Department of Labor Commissioner Roberta Reardon has also reached out to the state’s largest Chambers of Commerce to educate businesses on the changes, the agency said in a statement.
California, which last year expanded its law from only covering supervisors to companies with five or more employees, will study the New York law as it develops its own, free, online training course, Kish said.
Sexual harassment has been illegal in the workplace since a unanimous 1986 U.S. Supreme Court ruling found that it violates workplace discrimination laws. A pair of high court rulings in the late 1980s established the precedent that a company could be protected from many sexual harassment lawsuits if the business had a clearly defined and enforced policy against the practice.
That led to the prevalent “check the box” approach that had prevailed until recently, said Patti Perez, author of the book The Drama-Free Workplace, a guide to preventing harassment with effective workplace policies and culture.
“By simply focusing on the legal definition of compliance, all that does is teach rules,” says Perez, also a former member of two California workplace regulatory boards. “It does not teach respect and civility in the workplace.”
While revamped training is the biggest workplace change many workers will experience, it’s unclear whether the new requirements will lead to safer workplaces. Tippett’s research found that many corporate training programs are still based on decades-old content that emphasize legal definitions, rather than promoting better behaviour.
The U.S. government has estimated three-quarters of incidents go unreported and a 2019 survey found more than a third of American workers said they still believe their workplace fosters sexual harassment.