What Are the Basic Elements of Sexual Harassment Training?

What Are the Basic Elements of Sexual Harassment Training?

Recently, McDonald’s announced a new training initiative in support of a “professional, safe and respectful workplace.” The training will address workplace violence; the prevention of harassment, discrimination, and retaliation; understanding unconscious bias; and antibullying, as well as bystander scenarios. In advancing this training, this major employer is not only addressing requirements already in effect in several states but also promulgating training beyond what is required nationally.

The announcement from the fast-food giant follows in the wake of “25 new sexual harassment charges and lawsuits” brought against it by a coalition of public interest nonprofits and a law firm. This is according to a press release issued by the National Women’s Law Center (NWLC). The center has released a report on sexual harassment in the workplace that uses data compiled from the Equal Employment Opportunity Commission (EEOC). The report found that “[i]ndustries with the highest numbers of sexual harassment charges filed by women include accommodation and food services.” In the accommodation and food services industry, the data show that between 2012 and 2016, the number of sexual harassment charges per 100,000 women workers filed with the EEOC were 1.3 for Asians, 10.7 for blacks, 3 for Latinas, 4.2 for white non-Hispanic, and 4.6 total. This may be viewed positively, given the relatively low number of filings per 100,000. However, the report also notes that “overwhelming majority of those who experience sexual harassment never file a formal legal complaint.” In short, the 4.6 out of 100,000 is likely the tip of an iceberg.

For example, a survey conducted by Hart Research Associates found that “Forty percent of women in the fast-food industry report facing sexual harassment on the job,” and that “Previous survey research suggests this rate is substantially higher than in workplaces overall.” The NWLC report also supports this conclusion, with 13.8 percent of the sexual harassment charges that EEOC receives coming from the accommodation and food services industry, with retail in second place at 12.7 percent. The NWLC report also offers this story as an example of one fast-food employee’s experience:

Jennifer works at a fast food restaurant. A cook at her job regularly tried to kiss and grope her. She asked him to stop, but the cook kept texting her inappropriate messages, asking her to send him pictures while he was in the shower. When Jennifer reported the sexual harassment to her employer, she was told to “shut up and to drop it.” The owner then called her a liar, and told her to stop talking about the harassment, because the “restaurant is how he feeds his family.” The owner then cut her hours and hired a different woman to replace her.

As a way of addressing this problem, the NWLC report offers employers some recommendations. These include “creating and maintaining a strong organizational culture of respect and dignity” and “implementing effective, relevant, interactive training that educates employees and making sure they understand what behaviors are and are not acceptable for the workplace.” Two final recommendations are “ensuring employees know how to report through channels they trust; and consistently holding people accountable for failing to meet those standards.” The training program that McDonald’s plans to implement will presumably address these recommendations.

State Requirements

As an employer with a presence in every state, McDonald’s already has experience with required sexual harassment training. The states of California, Connecticut, Delaware, Illinois, Maine, and New York have sexual harassment training laws. Employers that seek to implement, like McDonald’s, a sexual harassment training program could start by reviewing state laws in order to find what training compliance in these states looks like. For example, under the California law, employers must provide employees the following components of training in written form:

  1. The illegality of sexual harassment.
  2. The definition of sexual harassment under applicable state and federal law.
  3. A description of sexual harassment, utilizing examples.
  4. The internal complaint process of the employer available to the employee.
  5. The legal remedies and complaint process available through the department.
  6. Directions on how to contact the [Department of Fair Employment and Housing (DFEH)].

Elements of this list adhere to the suggestions of the NWLC report as well. Item three on California’s basic list implies an interactive program with examples, and items five and six offer a means of reporting. For additional guidance, this blog post offers a longer and more detailed list of California’s requirements than the one above. Even more thorough is the DFEH, which offers a four-page FAQ sheet with more detailed information. California’s DFEH also offers a pamphlet.

California is not the only state to require training. Connecticut also spells out in its law the elements of sexual harassment training, including its definition under federal and state law, a discussion of the “types of conduct that may constitute sexual harassment” (as in item three in California’s basic list above), a description of the legal remedies available to employees, a description of the penalties faced by harassers, and a discussion of strategies to prevent harassment. Delaware’s information sheet follows a similar pattern. The sheet defines sexual harassment and then offers some examples. It also mentions that retaliation is prohibited and provides a means to report harassment to state authorities. In Illinois, training requirements follow a similar pattern. In the state, sexual harassment training programs must include:

  • An explanation of sexual harassment
  • Examples of conduct that constitutes unlawful sexual harassment
  • A summary of federal and state statutory provisions, including remedies available to victims of sexual harassment
  • A summary of the responsibilities of employers for prevention, investigation, and corrective measures of sexual harassment.

Some common elements are clear, including definitions, examples, and means of reporting. Maine’s law follows this pattern. Required elements of training include “a description of sexual harassment, utilizing examples; the internal complaint process available to the employee; the legal recourse and complaint process available…and the protection against retaliation.”

One element of New York’s law is like those of the other states: a requirement for interactive training. That is, employees must respond to questions and/or prompts during training. New York also offers a five-page model training guide that can be of great help to anyone planning a training program. Those who like online courses may want to try New York City’s program, which is available in several languages. The city has its own sexual harassment training law. Finally, the EEOC has tips for small businesses on how to train on sexual harassment.

McDonald’s Plans

McDonald’s announcement covers more than sexual harassment, however. The corporation’s new training program will also include workplace violence and bullying. As the press release states, the new training program will be interactive and “in-person” (as well as “computer-based”) and thus will address an item common to the programs of the states listed above. Here are the elements that the McDonald’s program plans to address:

  • Mitigating Workplace Violence: Will train employees to recognize indicators and develop the skills and confidence they need to safely diffuse difficult situations that may arise with customers, employees, and others.
  • Safe and Respectful Workplace: Will educate supervisors and crew on harassment, discrimination and retaliation prevention, how to report a complaint and, importantly, how to appropriately engage as a bystander.
  • Unconscious Bias: Will build understanding for supervisors and crew on how unconscious bias can negatively impact relationships and that there are stereotypes, both negative and positive that exist in our subconscious that can affect our behavior and perceptions.
  • Anti-Bullying: Will support identification and prevention of bullying behavior of all kinds both in and outside of the workplace.
  • Bystander: Will review different bystander scenarios, power dynamics, and mitigation tactics.

Conclusion

In addressing what reports indicate is a serious problem in the fast-food industry, McDonald’s is placing itself ahead of other businesses that have yet to implement a sexual harassment training program that goes beyond the requirements of state and local laws. As a review of those laws makes clear, the most basic elements of sexual harassment training include definitions, examples that are covered interactively, and how to recognize and report harassment. Additional elements may be necessary depending on applicable laws and the employer’s intent on addressing harassment alone or as part of a larger campaign against workplace bullying and violence.

About The Author

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Eric Howard is a legal editor who lives in Los Angeles.

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