EFFECTIVE ADMINISTRATOR TRAINING
THROUGH EMPLOYMENT CASE STUDIES:
LEGAL CONSIDERATIONS
Stetson University College of Law
22nd National Conference on Law and Higher Education
Monday, February 19, 2001
Sheila Trice Bell
Bell & Trice Enterprises, Inc.
Washington, DC
I. Introduction
Court decisions and state and federal laws and regulations change the landscape of employment law on a regular basis—thus changing the legal risks, which face every college and university administrator[1]. In addition to administrators’ challenging daily programmatic responsibilities, they must also take the time to learn the effects that new court decisions, laws and regulations have on the employment relationships which they administer. The two major goals of this paper are 1) to illustrate the importance of effective, timely continuing professional education of college and university administrators regarding evolving employment law practices; and 2) to provide useful suggestions for effective education programs for administrators. The semantics of professional education can sometimes alienate members of academe who may consider the term “training” unrelated to the professional education of college and university administrators. For the purpose of this paper, the term “training” encompasses professional development education designed to assist administrators and other employees learn techniques that minimize or reduce legal risk while also improving management skills. In addition to the term “training,” examples of other terms for employee education programs include “orientation,” “workshop,” “seminar,” and “symposium.” In the final analysis, an effective professional education program regarding the legal requirements for proper administration of employment relationships in academe is essential for a well-managed college or university environment that achieves its educational mission.
II. Training is Required – Explicitly and Implicitly
A. Federal Requirements
Several Federal and state laws and regulations mandate training for recipients of public funds, public employers (in some instances with explicit reference to public universities and community colleges), as well as employers with a threshold number of employees. Examples follow of federal training requirements pertaining to employment law that affects colleges and universities.
1. General Duty Clause of the Occupational Safety and Health Act of 1970, Section 5(a) (1). The Act requires that employers conduct safety training for employees. The Federal Occupational Safety and Health Administration (Fed – OSHA) administers the Act and promulgated guidelines that serve as criteria for a successful safety and health management program. The guideline that evolved from the General Duty Clause gives employers a template for employee training programs by describing the design, methods of conducting programs and evaluations, and method for revising programs. It is interesting that at the end of the 1990’s the U.S. Department of Labor’s Bureau of Labor Statistics reported that safety training is the area of the highest percentage of training activity per employ in the nation[2].
2. The Drug Free Workplace Act (DFWP) requires that employers who receive federal grants or contract with the federal government inform their employees of the hazards from using illegal drugs. Employer who receive grants must certify that they will provide a drug free workplace and a drug free awareness program. Employers who contract with the federal government for contracts of at least $100,000 must “agree” (rather than the former, more onerous requirement that they “certify”) to provide their employees with drug free awareness training.[3]
3. The “Drug Free Work Force provision of 48 CFR Section 252.223-7004 requires the creation of a program that promotes the existence of a drug free work place for the purpose of having a drug free work force. Supervisory training to attain a drug free work place is a regulatory requirement.
4. Institutions that receive federal funds are required to execute Program Participation Agreements. Such agreements contain an array of institutional certifications including certifying that the individuals who serve as the institution’s representatives for administration of the federal funds are prepared to fulfill their duties. These individuals are called “principals.” The explicit requirement of certification of principals places an implied duty on colleges and universities to prove that principles know and comply with federal requirements. Information regarding requirements for administration of federal funds may be conveyed in a variety of ways to the principals. However, the education process must leave the principal sufficiently informed to perform his/her duties relative to proper grant administration. In order to minimize liability to the institutional recipient of federal funds, the institution must be able to show its good faith efforts to comply with federal requirements. An effective training program can demonstrate that named principals know the legal standards for compliance with receipt of federal funding. This demonstration can be evidence of the college’s or university’s good faith efforts to comply with federal law. In addition to demonstrating good faith efforts to comply with federal laws, institutions should be able to demonstrate actual compliance with federal laws. The importance of such evidence cannot be overestimated when colleges or universities face claims for liability under federal laws. (See Section C, below.)
5. The December 20, 2000 amendments to the Federal Acquisition Regulation [4] (FAR) constitute a federal final rule that amends FAR criteria for awarding federal grants and contracts for the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration. The successful contractor must “[h]ave a satisfactory record of integrity and business ethics including satisfactory compliance with the law” in five areas “including tax law, labor and employment laws, environmental laws, antitrust laws, and consumer protection laws.” (Underlining added) 48 CFR Part 9.104 -1. Section 9.104 - 3[5] of the final rule states further that “(t)his determination can be made by examining a prospective contractor’s record of compliance with the law.” Information that contracting officers must consider in making a determination of integrity and business ethics includes convictions or civil judgments for fraud or a criminal offense in connection with obtaining or performing a Federal, state or local public contract or subcontract.[6] Other related criminal offenses are listed as a basis for deciding not to award a contract to a prospective contractor. Moreover, federal contracting officers are instructed that they “should give greatest weight to violations of laws that have been adjudicated within the last three years preceding that (contract) offer.[7] However, they “must consider all relevant credible information.”[8] The earlier proposed regulations published in June, 1999 specifically mentioned training as a measure of compliance with the regulations. The final rule did not mention training explicitly. However the requirement of providing training in some form is implicit in the reference to satisfactory compliance with specific laws. Colleges and universities that receive public funds should consider the strategic implications of FAR requirements on their efforts to inform their administrators, faculty and other employees about statutory and regulatory requirements for federal and state contractors.
B. State Requirements
Several states require that specific employers provide sexual harassment training programs for their employees. These state statutory requirements are summarized in the article “The Emerging Law of Training” by Garry G. Mathiason and Mark A. de Bernardo, 45 Federal Lawyer 24, 26 (May 1998). Examples of state sexual harassment training requirements are:
1. Connecticut -- training for all supervisory employees of all public and private employers with 50 or more employees.[9]
2. Tennessee -- training must be conducted by every state agency, including state universities and community colleges.[10]
3. California -- training required within a specified time for each new law enforcement officers. Training may also include other topics. Furthermore, all continuing law enforcement officers must have sexual have sexual harassment training.[11]
4. Illinois – all state agencies must conduct training. There are also content requirements.[12]
5. Maine -- all employers (public or private) with 15 or more employees must be trained. Moreover, supervisory and managerial employees must have additional training designed to make them more responsive to such complaints.[13]
6. Utah -- all state departments must have such training and regulations describe the content of programs as well as the selection process for trainers.[14]
Given these state-mandated training requirements, it is prudent to check the law of one’s state for any and all requirements of training related to employment and labor law issues. Indeed, accepting grants or entering into contracts with any state or local governmental entity may carry explicit or implicit training requirements which the recipient of the grant or contracting entity will be expected to know and to conduct as a condition of the agreement. One must also research the sanctions for non-compliance with such requirements. Sanctions may have both institutional and personal consequences.
C. Case Law Standards
In 1998 and 1999 the United States Supreme Court decided three cases with important implications for employees relative to allegations of illegal discrimination. Training programs may provide employers with assistance in mitigating damages in discrimination litigation.
In 1998 the U.S. Supreme Court decided two sexual harassment companion cases that established an affirmative defense for employers in some cases in which a supervisor harassed a subordinate. In Faragher v. City of Boca Raton, 524 U.S. 775, and Burlington Industries v. Ellerth, 524 U.S. 742 (1998) the Supreme Court established standards for an employer’s liability for the sexual harassment of an employee by a supervisor. The standard for liability included an affirmative defense that the employer might be able to present to mitigate liability. The elements of the Supreme Court’s holding were: 1) an employer is subject to vicarious liability to an employee who has been the victim of an illegally sexually hostile environment created by a supervisor with authority over the employee; 2) if the victim of sexual harassment suffered no tangible job detriment such as demotion or loss of employment, then; 3) a defending employer may raise an affirmative defense to liability for damage. The affirmative defense has two required elements: a) the employer exercised reasonable care to “prevent and correct” promptly any sexually harassing behavior; and b) the victim reasonably failed to use any preventive or corrective opportunities provided by the employer or to take other action to avoid harm. For the purpose of considering the necessity of training, employers must remember that the Court gave an affirmative defense to employers who exercise reasonable care to prevent and correct promptly any sexually harassing behavior.
In 1999 the Supreme Court fashioned additional parameters for affirmative defenses available to employers in discrimination suits. In Kolstad v. American Dental Association, 527 U.S. 526 (1999) the Association faced liability because it did not promote a female candidate to a director position. After the jury at the trial level found liability on the part of the association, the trial court did not allow the jury to consider punitive damages. The Supreme Court reversed on the issue of punitive damages by articulating a standard for imposing punitive damages. However, the Court articulated a defense for employers by allowing employers the opportunity to provide proof of their efforts to encourage supervisors and managers to comply with the law. The Court limited employers’ vicarious liability for the “discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good faith efforts to comply with Title VII’.”[15] The Court also spoke with favor about employers’ dual efforts of adopting anti-discrimination policies and educating their personnel about the law’s requirements.
Lower level courts in subsequent cases[16] have used these Supreme Court standards as the basis for decisions regarding the role of training or the lack of adequate training to determine the liabilities of employers in various discrimination cases.[17]
After the 1998 Faragher and Burlington Industries cases, an article in the Federal Lawyer magazine proposed that a new body of law had developed around the issue of the need for training.[18] The authors supported their proposal by mentioning the duty to train and the duty of care required for reasonable administration of training programs.
The standards for reasonable training programs will vary depending upon the topic of the training, the audience and the work environment, as well as statutory or regulatory requirements and case law. However, the legal recognition of the need for training programs is unambiguous. In addition to the statutes, regulations and court decisions, above, other court decisions address the need for effective training [See, EEOC v. Wal-Mart Stores, Inc., 187 F. 3rd 1241 (10th Cir. 1999)]; the need for sufficient training [See, Miller v. Zee’s, Inc., 31 F.Supp. 2d, 792, 803 (D.Ore. 1998)]; and the general issue of the sufficiency of training [See, Hurley v. Atlantic City Police Department, 174 F.3 d 95, 118, 119 (3rd Cir. 1999), cert. Denied 120 S.Ct. 786 (2000)].
D. Lessons Learned from Statutes, Regulations and Court Decisions
The general lesson to be learned from explicit and implicit training requirements is that effective, timely training is not a luxury – it is a necessity for all colleges and universities. Even litigation-free higher education institutions must provide training that is mandated by law. In today’s litigious environment, administrators, faculty and staff are effectively flying blind in their respective professional duties if they do not know how to identify high risks of liability and to perform their duties in ways that minimize the risk of liability to their institutions and themselves. College or university-sponsored professional education about best practices to minimize risk is a necessary complement to other programs designed to enhance administrators’, faculty members’ and staff members’ skills related to their core duties.
A specific lesson learned from recent court decisions is that well-designed and well-administered programs can be adjudged to be reasonable efforts to prevent and correct discriminatory behavior. The words “prevent and correct” were used by the U. S. Supreme Court to describe the standard of good faith effort that the Court weighs in its calculus of liability. If the facts persuade the Court that an institutional defendant’s training programs are designed to prevent and correct illegal practices, then training is an affirmative defense that can serve to avoid or mitigate liability. Without some form of training, it is difficult to demonstrate a systematic and widespread pattern of behavior on the part of the institution or its representatives to prevent illegally discriminatory behavior and to correct instances of illegal discriminatory behavior.