Several states have recently mandated that employers provide sexual harassment training for employees: California, Connecticut, Delaware, Illinois, Maine, and New York. As an employment attorney with 25 years’ experience, I have often encountered the question of “Why do we need live sexual harassment training? Why can’t we use a video?”

I am uncomfortable recommending that companies rely upon videos for training, and this is not in my own on self-interest. (It’s in employment attorneys’ fiscal interest to defend harassment lawsuits, after all.) In the past, the EEOC has opined:

“Harassment training may be most effective if it is, among other things:

• Championed by senior leaders;
• Repeated and reinforced regularly;
• Provided to employees at every level and location of the organization;
• Provided in a clear, easy to understand style and format;
• Provided in all languages commonly used by employees;
• Tailored to the specific workplace and workforce;
• Conducted by qualified, live, interactive trainers, or, if live training is not feasible, designed to include active engagement by participants; and
• Routinely evaluated by participants and revised as necessary.

In addition, harassment training may be most effective when it is tailored to the organization and audience. Accordingly, when developing training, the daily experiences and unique characteristics of the work, workforce, and workplace are important considerations.”

Moreover, when asked to opine on the meaning of Delaware’s law requiring “interactive” training, Delaware’s Department of Labor has stated that a video, without the opportunity to ask questions and receive immediate feedback, doesn’t comply with the law. Further, according to Offit Kurman Principal Attorney Rod Biermann, who has extensive training experience, the New York statute clearly contemplates providing a live training presentation or an interactive webinar. Finally, live training from an attorney lends an air of gravitas to it. Employees may be more impacted by an attorney’s statements than an in-house human resources manager or even an outsourced H.R. consultant. By hiring an attorney, the company conveys a message: take this very seriously.

ABOUT KATHERINE FRY

kwitherspoonfry@offitkurman.com | 302.351.0902

Ms. Fry has 25 years’ experience of litigation and administrative law experience in every Delaware court, the U.S. Court for the District of Delaware, the U.S. Court of Appeals for the Third Circuit, and the United States Supreme Court. She has also represented clients in proceedings before the Delaware and U.S. Department of Labor, the Equal Employment Opportunity Commission, the Merit Employee Relations Board, and other administrative bodies. She counsels executives and companies in employment matters of all types. Her employment practice focuses on discrimination; non-compete defense and enforcement; Department of Labor audits; employment termination; Fair Labor Standards Act issues; creation and review of employee handbooks and policies; employment and severance agreements; executive compensation; and harassment training. She teaches at the Lerner School of Business at the University of Delaware. She speaks frequently on employment topics and has been a repeat guest on WILM’s radio show, “Money and Politics in Delaware.”

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