Employment Relations Training

Training becomes a key piece of proof of the first prong of an employer's affirmative defense to liability in defending a hostile work environment claim. That is, an employer will want to be able to demonstrate that it exercised reasonable care to prevent harassment. (See Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). Keep in mind that in the case of alleged supervisory harassment it will be the employer's burden to prove that it undertook steps to prevent the harassment. To this end, be sure to retain all dated sign-in sheets setting forth the names of the employees in attendance, the materials provided, all relevant policies, biographical data on the trainer, and any written acknowledgement forms. The same evidence is also relevant to the third prong of the affirmative defense — that the complaining party failed to take advantage of safeguards and prevent harm — if it can be shown that the complaining party was provided training on the employer's policies regarding harassment and how to report concerns of the same. In this context the documentary data listed would become a critical part of the third-prong of the employer's defense. This is also why it is important that attendance is mandatory, not voluntary.

It is equally important that the training is “adequate.” In one case, an employer was unable to prove that it had taken reasonable care to prevent harassment in defense of a lawsuit, despite having policies prohibiting harassment and training on the same. See Wal-Mart Stores, Inc. v. Davis, 979 S.W.2d 30 (Tex. App. 1998) (pet. denied). In this case, the district manager could only recall attending one harassment training class “a couple years ago” and discussing the subject at one corporate meeting. The alleged harasser recalled only “15 minutes” of training on the company's sexual harassment policies and procedures. In addition there was evidence that no company employee was responsible for training the workforce on the relevant policies. Based on all of the above, the court concluded that the first prong of the affirmative defense had not been satisfied. While training is difficult to schedule and even more cumbersome to execute, it is imperative that the appropriate amount of time and energy be placed on creating a course that employees will learn from and remember during their daily activities.