Avoiding Mistakes in Sexual Harassment Prevention Training
Copyright 2006 Joni Johnston
Headache #1: An employer shipped out copies of an expensive
video program to dozens of distant managers without providing HR
staff to either answer questions or ensure that employees were
actually following and learning from the programs. Many of the
managers turned on the videos in break rooms and left them
running while employees came and went.
Headache #2: During face-to-face anti-harassment training given
by a lower-level supervisor, he let it be known that he had no
use for the training and was just going through the motions.
Regardless of whether or not you comply with any mandated sexual
harassment training laws, jurors are increasingly unwilling to
accept a "check the box" approach to harassment prevention
training; they want to see training that is interactive,
memorable, supported by senior management, and delivered by a
credible, well-trained presenter. Given that an ineffective
training program will provide little or no protection in the
event of a lawsuit, let's take a look at the essential
components of an effective training program and identify some of
the most common pitfalls.
Effort May Count - But Not Much
Harassment prevention is not an easy subject to teach. One
reason many training programs are of such poor quality is that a
real mastery of the subject requires a high level of legal
understanding coupled with the practical concepts understood by
those who have a firm grasp of the day-to-day realities of the
workplace. Many training programs fail to integrate the two
disciplines and thus fall short in one respect or the other.
Another major reason is that, up until now, most employers have
viewed anti-harassment training as something you show up and
provide information about, then let them "learn" by doing.
Employers, however, cannot afford to let supervisors "wing it"
when it comes to learning how to recognize, refrain from, or
properly handle sexual harassment. Supervisors and managers not
only have to master complicated concepts in advance, but must
also practice proper techniques for effective prevention and
complaint handling. That requires time, attention, and
education, not just training.
Who Should Train
As the quality of compliance training has increasingly become
grist for the plaintiff attorney's mill, the selection of an
outstanding training provider a critical business issue. The
advantages of in-house HR or training personnel include cost and
the fact that such staff is knowledgeable about the particular
workplace, the employees being trained, and the particular
business or industry.
On the other hand, harassment prevention is a topic in which
knowledge is necessary but not sufficient as some of the most
challenging components for instructors is anticipating and
responding to the challenging questions and negative attitudes
of course attendees. Additionally, because of the natural
resistance many employees and managers initially feel towards
this subject matter, they are more likely to question the
"agendas" of in-house trainers, no matter how neutral or
objective they may strive to be.
Harassment prevention training specialists - whether internal or
external - should be able to offer: legally accurate and
up-to-date analysis as well as practical and realistic
programming; lively, interactive presentations; appropriate
educational techniques; and a variety of formats, follow-up and
curriculum options. One thing is clear; educational research
indicates that adult learners learn better with a live teacher -
especially one they can respect.
Training Mistakes: When the Treatment is as Bad as the Disease
Mishandled training not only may fail to insulate an employer
from harassment claims and punitive damages awards, but also can
create its own legal problems. Accordingly, employers should
seek to create training sessions that are "jury worthy" in tone
and language by avoiding the following traps:
Asks the learner to make legal conclusions: Some harassment
prevention training programs present scenarios and then ask the
participant "Is this harassment?" The learning points that such
a question is trying to cover can be communicated just as
effectively without making a legal conclusion. In addition,
questions that ask for legal conclusions are problematic in that
they can be used as evidence against the company in the event of
a future lawsuit if a manager or employee engages in behavior
that was defined as "harassment" in a previous training class.
Essentially, the company's hands may be tied because of evidence
it created against itself. See Cadena v. Pacesetter Corp., 224
F.3d 1203 (10thCir. 2000).
Increases Liability by "Setting the Bar Too High": For example,
in workplace harassment training, a program may state that any
discussion of personal relationships in the workplace is
inappropriate. While this approach is well-intended, it can
actually be damaging to the organization for the following
reasons: 1) If the program "concludes" that such behavior is
unacceptable, then it has made a legal conclusion that could be
used against the organization in the event of a future lawsuit,
and 2) An overly "sanitized" message may also spark an
unwillingness on behalf of the learner to take the content in
the program seriously.
Focuses only on sexual harassment: The US Supreme Court and the
EEOC have made clear that a harassment prevention program should
address all of the "protected categories." See Equal Employment
Opportunity Commission, Enforcement Guidance: Vicarious Employer
Liability for Unlawful Harassment by Supervisors (6/18/99); See
also Burlington Indus., Inc. v. Ellerth, 188 S. Ct. 2257 (1998)
and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998). To
be effective, a workplace harassment prevention training program
should address harassment related to gender, race, national
origin, color, disability, age and religion as well as other
"protected categories" under state law, such as sexual
orientation.
Fails to Provide Appropriate Content for Appropriate Groups: One
of the greatest challenges in creating an employment law
training program is ensuring that the content communicates the
correct information, while not encouraging employees to bring
lawsuits. Employees primarily require information about the
employers' commitment to a harassment-free workplace, assurances
against retaliation as well as instruction on the employers'
policies and procedures, and expected standards of conduct.
Managers need education not only in recognizing harassment and
discrimination and refraining from it, but also in proper
handling of complaints or other situations possibly raising the
issue, as well as such matters as preventing retaliation and
effective follow-up with the complainant. A thorough discussion
of legal liability is really only appropriate for managers, who
need to know more detailed information about the law, and the
specific risks that misconduct poses to both them and the
company.
Focuses narrowly on legalese: Harassment/discrimination
prevention programs are designed to educate employees and
managers - not lawyers or HR experts. Therefore, when discussing
"the law," employers should focus on what employees most need to
know: what is and isn't harassment, how to report it and how to
maintain a retaliation-free workplace. Manager training programs
must give managers and supervisors the practical tools they need
to implement a policy successfully, how to legally interview for
hiring and promotion, and how to manage performance in a way
that does not discriminate against anyone on the basis of
protected characteristics.
Fails to Reflect Your Organization's Specific Workplace
Policies: A harassment/discrimination prevention program should
routinely incorporate an organization's specific workplace
policies. In fact, if a training program includes a tracking
mechanism that shows receipt and acknowledgement of that policy,
then the program performs the dual function of training and
policy dissemination. In addition, training should include
policy-related issues such as reporting procedures,
confidentiality issues, the conduct of investigations and
retaliation prohibitions. While employer policies should
emphasize zero tolerance with respect to discrimination and
harassment, they also must encourage employees to report
inappropriate behavior-with many options in which to report a
complaint, including the option of reporting a complaint to a
person not in the employee's chain of command-to ensure
confidential and prompt investigations and to protect victims
and witnesses from retaliation.
Fails to Replicate a Realistic Working Environment: Many
harassment prevention programs use vignettes and case studies
that seem unrealistic and "hokey" and don't represent the more
common types of situation that employees encounter in the
workplace. This approach not only causes chuckles from
employees, a jury you're trying to convince of your good-faith
efforts to prevent a serious topic will likely have the same
reaction.
The Bottom Line
HR should be defined not by what it does, but what it delivers.
A sound understanding of the civil rights laws is just a
starting point in the quest for legal compliance and effective
work relations; it's the rest of the journey - the attitude and
expertise of the trainer, the quality of the content, the
receptivity of the learners - that determine how successful the
harassment/discrimination prevention program is in meeting its
goals. The savvy HR professional will pick a harassment
prevention training provider who has the emotional intelligence
as well as the expertise and experience to transform a skeptical
audience into compliance partners and more effective
communicators.