William T. Wilson, Esquire

It is a rare employer that does not already recognize an obligation to refrain from many kinds of discrimination in the workplace. The Pennsylvania Human Relations Act, and a number of federal statutes, make it unlawful to discriminate on the basis of race, national origin, gender, religion, age, or disability, and a number of other categories. Most employers are also very conscious of the fact that their obligation does not end with non-discriminatory decision making by management.

Harassing behavior by co-workers, even those without any management or decision making authority, can create liability for an employer if it is severe or pervasive enough to create a hostile environment and is directed at other employees in a way that implicates a prohibited kind of discrimination. The most frequently mentioned form of harassment is sexual, but the earliest lawsuits alleging an unlawful hostile environment were based on race, as the Supreme Court discussed in its first sexual harassment opinion, Meritor Savings Bank v Vinson. But, the law does not impose a general code of civility, and harassing behavior usually creates legal liability only if it is based on one of the categories that are made unlawful forms of discrimination by statute.

Employers are not automatically liable for the misbehavior of their employees, especially if they have taken reasonable steps to protect other employees from that kind of conduct. In two more recent cases, Faragher v City of Boca Raton and Burlington Industries v Ellerth, the Supreme Court clarified that an employer is not liable if it has a policy against sexual harassment and the employee asserting a legal claim fails to take advantage of the policy to attempt to correct the problem. A policy must give the employee meaningful ways to complain about the harassing behavior, and the employer must promptly respond to complaints with actions that effectively correct the problem without any retaliation against the complaining employee. A policy must, of course, also be published to the workforce, which includes a reasonable effort to insure that employees understand the kind of behavior that is prohibited. No specific standards as to the amount of such training have been established by the EEOC or the courts.

California has recently passed legislation mandating that all employers with 50 or more employees have at least two hours of classroom or other effective interactive training on the nature of unlawful harassment, how to prevent it, and the employer's obligations in conducting a investigation of allegations of harassment. Training must take place at least every two years and be conducted by a subject matter expert. Two states, Connecticut and Maine, have already passed minimum training standards, but California may push the issue into the national spotlight.

California is one of the largest economies in the world and is a trendsetter in regard to many public policy issues as a result. Employers with a multi-state presence, which include California-based employees, will certainly tend to adopt uniform training standards that comply with the California standard. Other employers will then be compared to those who do meet this reasonable standard. Legislation passed in California is not, of course, binding on Pennsylvania employers or anyone else that does not have employees in that state. Mid-sized and larger employers who fail to implement training regimens that approximate that of the new California legislation may face difficult questioning at trials as to why they are less diligent in preventing discriminatory harassment than their competitors.

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