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In the past six years the U.S. Supreme Court has broken new ground in three employment discrimination cases. The result is that it may no longer be enough to have policies in place which regulate these topics. Today, it is important to have training programs to prevent harassment and discrimination. Judicial scrutiny has been so intense that a new body of employment law is emerging: the law of training.
This "law of training" is still developing as courts define the "who, what, when, where and how" of training. Current case law has been focusing on employer's training efforts in the following areas:
- Failure to train. The focus has been on formal training programs along with the commitment shown by the employer to these training efforts.
- Scope. The breadth of the subject matter should include racial harassment and cases which fail to comply with the Americans with Disabilities Act (ADA).
- Investigative technique. The courts are now looking at the credentials of who are the case investigators and how the interviews are conducted.
- Frequency and Currency. Along with current employees the training should cover new hires and new supervisors. Refresher programs and special programs should be conducted when circumstances change.
Training materials are also falling under scrutiny as well. Employers should provide supervisors with supplemental information on their "special obligations under both the law and the employer's policies." This includes assisting the supervisor in recognizing the need for reasonable accommodations for an employee under the Americans with Disabilities Act.
Employers' training efforts, and the training materials, are also being examined by opposing counsel. The plaintiffs' attorneys look at the adequacy of the training efforts and then compare them against other organizations. Plaintiffs attorneys search for poor marketing materials such as off-the-shelf programs which are inexpensive to purchase and promise results.
Plaintiffs' attorneys also look at the involvement of senior management in the commitment to the training efforts. They are looking at whether the training program is customized or off-the-shelf, how the program is delivered, and how it is measured.
Investing a little time and money into the training effort can minimize the risk of the employer. It is important should the need arise to defend the company against a sexual harassment or discrimination case.
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