Seven years ago, I wrote an article that was published in The Bakersfield Californian warning employers that they should not use videos as their primary tool for harassment prevention training because of several lawsuits that were lost by employers who did just that.
I was surprised when someone wrote a letter to the editor expressing his disdain about the article and harassment prevention training in general. The writer said my article suggested “that businesses need to provide even more laborious and redundant training” and asked, “When is it going to be enough?”
If the letter writer thought I was pushing even more laborious and redundant training before, what follows is probably going to make his head explode.
In October, Gov. Jerry Brown signed Senate Bill 1343, which requires California employers with five or more employees to provide all employees with sexual harassment and abusive conduct prevention training conducted by trainers or educators with knowledge and expertise in those areas.
Employees in supervisory positions must receive two hours of training while nonsupervisors must receive one hour. The training must be completed between Jan. 1, 2019, and Jan. 1, 2020. Employees who were trained in 2018 or before will need to be retrained. (For more information on the training requirements, go to https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2018/12/SB_1343_FAQs.pdf).
“Why, why, why?” I imagine the aforementioned letter writer is now asking while shaking what remains of his head. After all, “the majority of employees ‘get it,’” and the “laws aimed at preventing these workplace distractions (his term for harassment) had merit years ago, but now, more often than not, they are used by employees with personal agendas,” he wrote in 2011.
In the letter writer’s defense, that was before the #MeToo movement, when hundreds of women and dozens of men publicly came forward after years of silence to tell their stories of being sexually harassed. Who could imagine that all of these people had been subjected to sexual harassment and never said anything about it?
Because I’ve worked in human resources for almost 20 years and because of my own experiences, I could.
I feel confident in saying that every woman has at least one story of being subjected to unwanted verbal visual, or physical conduct of a sexual nature at work (which is the definition of sexual harassment). I’ve got a few stories myself, including the male manager who gave me shoulder massages when I worked at a restaurant in my teens; the male co-worker who tried to kiss me at the company holiday party; the male board member who called me “Voluptuous Robin” every time he saw me; the female supervisor who told me the air outside of our building smelled like sperm, that a good training workshop was better than sex and how her husband’s sexual appetite had increased after his brother died; and the female supervisor who told me about the wonderful sexual lubricant she was using.
None of this conduct was egregious; however, it made me uncomfortable and it shouldn’t have happened. Sadly, my stories seem harmless compared to what a lot of people have experienced. And, like those who finally came forward, I never said anything about the inappropriate behavior to the person subjecting me to it or to someone in a position of authority mostly because the perpetrator was usually a person in a position of authority and I was afraid.
Perhaps, as the letter writer stated, the majority of employees get that they shouldn’t engage in verbal, visual or physical conduct of a sexual nature at work. Unfortunately, many employees don’t.
“The insidious complaints or accusations made by (system-playing) employees probably outnumber true violations,” wrote the letter writer.
As someone who constantly receives legal updates regarding harassment lawsuits from various organizations, I disagree. You can see a sample of the dozens of lawsuits the state and federal government have filed against employers just in 2018 because of harassment that allegedly happened at their workplaces on the Equal Employment Opportunity Commission’s website at https://www.eeoc.gov/eeoc/litigation/selected/2018harassment.cfm or the Department of Fair Employment and Housing’s website at https://www.dfeh.ca.gov/news-and-public-records/press-releases.
The letter writer went on to say that because of harassment prevention training, “an employee is empowered by simply ‘overhearing’ something they feel is offensive. The system then begins to attack the unsuspecting violators, pushing the First Amendment aside in the process.”
Hopefully, harassment prevention training will help employees feel empowered to speak up when they overhear something they find offensive, as opposed to keeping quiet like I and so many others did. And, hopefully, there won’t be unsuspecting violators because everyone will learn what they shouldn’t say or do at work or around their co-workers.
Finally, the First Amendment isn’t pushed aside because it doesn’t give us the right to say whatever we want to at work (check out my article “What happened to the First Amendment?” in the October issue of KBJ for more information about that).
“What businesses, personnel professionals and the courts need to understand is that not everyone who cries wolf is a victim,” wrote the letter writer.
That’s true. That’s also why employers and personnel professionals need to know how to conduct an investigation properly so those who are accused of wrongdoing have an opportunity to tell their side of the story.
This new training requirement might seem unfair or unnecessary to employers. But the sad truth is that people are still being harassed at work (sexually and otherwise). Hopefully, telling employers and employees what harassment is (and what it isn’t), how to prevent it and what to do if it happens should help to solve this problem.
Employers with five or more employees who fail to comply with the law should know that the DFEH (the state agency that handles harassment and discrimination claims) will accept complaints from employees after Jan.1, 2020, that their employers did not provide the training in 2019 and will work with employers to obtain compliance with the law.
The letter writer asked, “When is it going to be enough?”
Evidently, when harassment in the workplace is no longer, as he called it, a distraction.
Robin Paggi is a training and development specialist with Worklogic HR.