Heading Off Harassment
Effective training is critical to limiting legal exposure for workplace harassment.
- By Patricia S. Eyres
- Jan 01, 2005
DESPITE increased attention paid to harassment prevention in the business
world, claims of workplace harassment have remained relatively steady and jury
awards have been quite high. It is critical that management knows the ins and
outs of proper harassment training.
Your employer's commitment to harassment prevention training is as critical
to your legal protection as a written policy prohibiting harassment. The reason
is simple: The conduct involved occurs in the day-to-day interaction of
employees. To effectively and legally handle issues of harassment, a manager,
supervisor, or HR professional must know what harassment is, why it's illegal,
what to do about it, and what the consequences of failure to properly handle
these issues can be.
Harassment can be based on sex, race, religion, age, and even disability. It
isn't so much the original behavior that creates the potential for massive
liabilities. Many of these behaviors occur in workplaces every day. Rather, it
is the way management handles the issue, or fails to deal with a complaint, that
subjects the employer to significant legal exposure. The underlying conduct
merely triggers the complaint. The employer's legal responsibility to conduct an
immediate investigation and then to take immediate and appropriate corrective
action is the focus of many cases today. Accordingly, you may be called upon to
design management training that successfully avoids or minimizes these real
legal risks. (See Unique Issues for Legal Compliance Training
sidebar.)
In one recent case, a trial judge found an employer automatically liable for
a supervisor's sexual harassment. A significant consequence of this decision is
that although you may distribute written anti-harassment policies, your employer
can be held liable for harassment for a supervisory employee. For this reason,
it is especially important to conduct effective harassment prevention training
for managers and supervisors, with the objective being to have a positive effect
on their behavior.
One of the major challenges you may face in presenting workplace harassment
programs is participant resistance. Many simply don't want to be there. The best
way to gain and retain their attention is to explain the concept of personal
liability. Begin with your organization's policy, as well as all of the
pertinent laws and regulations. A review of the range of personal consequences
for employees can include potential disciplinary actions for violations.
Hostile environment harassment, whether based on sex, race, religion, or age,
is hard to define and even more difficult to explain. You may find some
philosophical resistance to government "regulation" of interpersonal behavior.
Trainees often have trouble with the legal definition of sex discrimination in
the form of "harassment" because much of the behavior may, in some issues, be
socially acceptable outside the work setting (such as parties and happy
hour).
The notion that discrimination must be motivated by ill-will malice or other
intentional conduct is hard to overcome. Employees often feel threatened by the
fact that unintentional behavior (e.g., "joking," "compliments") can be unlawful
discrimination, based on the perception of the person who claims to be offended
(in legal parlance, the "victim" of discrimination). In sexual harassment case
in particular, issues of gender identity, sexuality, and sexual interaction are
uniquely personal and emotional, and the differences in reaction perception are
compounded by cultural, spiritual, and other life experiences.
Training Strategies
Because of the difficulty in defining hostile
environment harassment and the fact that a partially subjective standard
(perception of the reasonable "victim") applies, many organizations approach the
training from an "awareness" perspective. This approach is premised on the
belief that if employees and managers are sensitized to the issues involved with
harassment, they will make efforts to question their own behavior and that of
others if it could possibly be construed as offensive or could be found
illegal.
1. Carefully consider mixing management and staff in the same program.
Cautiously approach the decision to train management and non-management
employees together. The advantages to training employees of all levels together
is that everyone will be reading the same materials, and non-management
employees have the benefit of witnessing firsthand that management has knowledge
of how to handle such matters properly. Disadvantages include the risk that
managers in the session will not be knowledgeable and will show their ignorance
to employees who report to them or even make comments that can exacerbate an
environment that is already hostile. Likewise, employees may be intimidated to
ask questions, particularly about incidents they feel management may not have
handled appropriately.
2. Obtain support from the highest levels of management. Top
management must support the programs and make attendance mandatory. Monitoring
complete attendance helps make the content available to everyone and serves the
legal purpose of documenting the employer's efforts to prevent harassment in its
workplace.
Training alone will be insufficient to shield an employer from liability if
it fails to enforce consistent policies, take improper conduct seriously,
properly investigate complaints, and take appropriate corrective action where
warranted. It does, however, demonstrate a level of commitment to a
harassment-free work environment and may mitigate damages in a subsequent
lawsuit.
3. Consider content issues carefully. The training should reinforce
participant awareness and provide practical examples for development. Some
specific content that is critical to legal compliance includes:
- Management participants must understand how to create an environment that
encourages recipients of unwelcome behavior to talk with the harasser or
employer.
- Clarity the specific differences between compliments and sexually harassing
behavior.
- Encourage an environment in which sexual harassment is taken seriously, and
where employees are not afraid to interact when addressing the issue, whether it
be male/female interactions, racial/ethnic sensitivities, or differing cultural
perspectives.
- Clarify the employer's, management's, and employee's responsibilities to
create a harassment-free workplace and to take appropriate corrective action if
inappropriate verbal, physical, or visual harassment occurs.
- Encourage participation with a non-judgmental attitude. If a participant's
behavior is inappropriate or a trainee advocates an action that is unlawful or
violates company policy, the trainer must clearly say so and explain
why.
4. Use only qualified trainers. The trainer must be professional at
all times and take the issue seriously because he or she is the role model for
how sexual harassment is dealt with in the training program. In addition, the
presenter should know the audience (i.e., industry jargon, company policy,
complaint process, and any unique issues that may affect the program's
effectiveness).
Select and train trainers carefully. Before implementing training, ensure the
trainers themselves are sensitized to the issues that are likely to be raised in
sessions, to the company's strategy, and are well versed in the company's sexual
harassment policy and procedures, disciplinary process, and all applicable
laws.
The skills, knowledge, and ability of individuals selected to conduct
training should include, at a minimum, thorough knowledge and understanding of
applicable legal and administrative standards, familiarity with the employer's
policies, and a perspective of unique company issues (such as prior existing
complaints). This is important to avoid stumbling unintentionally on a fact
pattern too close to home. This often causes disruption in the workshop or
participant inattention while they are "speculating" about who is being
discussed.
Trainers also should be sensitive to issues of confidentiality (concerning
both knowledge of existing complaints and questions raised by participants).
This is critical and often dictates the use of an external consultant or
otherwise independent trainer. In addition, trainers should be aware of, and
sensitive to, gay, lesbian and bisexual issues. While federal law does not yet
provide a separate protection for sexual orientation, hostile environments
created by targeted behaviors are actionable. Some states provide separate
protection from all forms of discrimination, including harassment.
Finally, presentation of a successful workplace harassment program requires
the ability to avoid confrontation and "value judgments" about employees'
comments and reactions to the subject area to deal objectively and
compassionately with emotionally distressed individuals in the context of the
training and to answer questions and refer trainees to alternative resources for
obtaining further information.
5. Use effective methodology, designed for maximum understanding and
application of skills to enforce legally defensible behaviors throughout the
workplace. Your curriculum design should provide for a variety of learning
styles by using lecture, group discussion, small group exercises, and case
studies. Role-play is also extremely useful for management training. Highly
interactive sessions build upon individual attitudes, behaviors, and knowledge.
Place emphasis on creating an atmosphere of trust where women and men are
encouraged to communicate openly and with mutual respect. Participants should be
encouraged to practice new behaviors.
6. Carefully approach the issue of videotaping sessions. Because
sexual harassment training and refreshers must be provided periodically and to
all new hires within a reasonable period of time, employers may seek to reduce
the cost by videotaping sessions for later use. Carefully consider this
decision. While it is cost-effective, there are two problems. First, the camera
may cause some employees to withdraw or fail to seek clarification of issues
they don't understand. The value of interaction and discussion--so important
with this topic--is thereby diminished. Second, the law in this area changes
frequently. Unless you assign someone to continually monitor the content, you
may find yourself providing outdated (and inaccurate!) information.
This column appears in the January 2005 issue of Occupational Health &
Safety.
Unique Issues for Legal Compliance Training
Legal compliance training can range from sexual harassment prevention to EEO
compliance and managing marginal performers, including discipline/termination
actions. These programs present some special challenges to assure effective
learning.
1. Most participants will not want to be there and may be initially resistant
or even hostile. Don't take this personally. It is even helpful to acknowledge
that resistance at the beginning and build discussion around it.
2. Case studies can be effective methods for imparting skills, particularly
to managers. However, some precautions are necessary:
3. Avoid putting people on the spot in role-plays. These are uncomfortable
situations and lead to distraction and further resistance. If you are using
role-plays, try to identify willing participants in advance.
4. When using role-plays, take care to avoid apparently stereotypical
scenarios, such as a male harasser and a female victim. Try reversing the
roles.
5. Use realistic role-plays for managers. Place them in the troublesome
situations they often find themselves; say, terminating a disabled employee who
can no longer perform the essential functions of the job with or without a
reasonable accommodation. While these are tough and stressful, they are
unfortunately all too real. Don't skirt the tough issues, but develop a
supportive method to debrief a stressful exercise.
6. Always leave enough time to thoroughly discuss and debrief a vignette or
exercise. In this area, a little information is a dangerous thing. Context and
full discussion are very important. Make sure written materials expand upon the
subject matter and provide resources for continuing answers to the difficult
questions. Remind participants that Human Resources (and even the legal
department) are not the enemy of managers; they are there to help in these
difficult situations.
This article originally appeared in the January 2005 issue of Occupational Health & Safety.