NY requires employers to provide each of their employees with an annual sexual harassment prevention training in satisfaction of Labor Law §201-g and Local Law §96. Other states have similar requirements. Failing to train exposes employers to off-the-charts statutory penalties and misdemeanor charges by the government and devastating money judgments if an employee sues for workplace discrimination.

To avoid exposure, you need to offer interdisciplinary trainings that are driven by a composite of findings from the social sciences and the law. You also need a star presenter, who can engage your team while being able to manage a very polarizing topic. Then, you need to make these trainings available on-demand, include a fully-developed complaint procedure, and have an administration system that can track compliant and non-compliant employees.

If you try to administer the training yourself, by leveraging the free trainings offered by either the City or the State, you won’t comply as they fail to include the required internal complaint process and aren’t interactive, as required. In fact, the State’s website states that “the videos alone are NOT considered interactive…you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented.” These free trainings also don’t offer an administration infrastructure to track employee compliance.

Realizing these shortcomings, payroll companies and outside HR companies (PEOs and ASOs) rolled-out their own trainings. However, our audit of many of these companies revealed non-compliance. Moreover, even when compliant, these trainings only represented bare-bones solutions. Simply, they didn’t mitigate exposure to lawsuits and often included attributes that caused increased workplace discrimination.

To avoid exposure, trainings need to address other protected characteristics at the workplace in addition to sexual harassment because sexual harassment is just one of the many protected characteristics in employment discrimination. Stated otherwise, if you just train on sexual harassment, your company is implicitly endorsing workplace discrimination on every other protected characteristic. As you can easily discern, that is quite problematic, particularly because most claims of workplace discrimination involve disability discrimination, not sex discrimination in the first instance. Beyond that, laws are continuously evolving. Even the standard for sexual harassment in NYS has changed since the model training was created. Beyond direct changes in discrimination law, did you know that sexual harassment trainings can impact other laws? For example, in 2019, the federal government issued a law that prevents federal contracts from going to companies that train on many aspects of implicit bias, which is a common topic in sexual harassment trainings. Don’t you think it’d be smart to only utilize curriculum that benefits your company and doesn’t hurt it?

That is where outsourcing to attorneys seems to fit the bill. Lawyers should understand the current state of the law and how it impacts your business. However, hiring the wrong attorney could backfire. Lawyers typically don’t offer on-demand trainings and prefer live trainings for whatever reason, whether streamed or in-person, which causes you to violate the law’s requirement of training new hires as soon as possible. Further, lawyers aren’t social scientists and therefore, don’t understand how to effectively implement a behavior change intervention based upon industry specific models and best practices. In a nutshell, lawyers often only provide information, which is never an effective behavior change intervention without also addressing your employees’ perceived control, subjective norms, and attitude towards the subject matter, or otherwise. Even worse, they provide information by talking to your employees like suspects rather than bystander solutions, which has been demonstrated by research to cause your training to backfire and increase events of discrimination.

That is why hiring a practicing discrimination attorney who is also a Diversity, Equity, and Inclusion (DEI) Professional seems to be the right solution. However, anyone can market themselves as a DEI Professional today because there aren’t standards in the profession. As a result, you need to find the right solution with the right credentials and capabilities.

Lieb Compliance was founded by Andrew Lieb, a practicing discrimination attorney, who holds a master’s in public health (social science), taught college-level Human Sexuality, worked at a leading non-profit human rights organization, has been published hundreds of times, and has taught anti-discrimination to tens of thousands of individuals. He is a dynamic radio talk-show personality who partnered with a corporate HR executive to offer a tailored learning management system to solve all your on-demand, reporting, and administrative needs while effectively providing corporate trainings that blend the social sciences with the legal substance necessary to mitigate exposure to discrimination claims. Lieb Compliance is your sexual harassment training solution.