Six Steps To Limit Claims from Workplace Harassment

by Patricia S. Eyres, president, Litigation Management & Training Services Inc.

Despite increased attention on 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.

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 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 cases 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.

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 material and non-management employees have the benefit of witnessing firsthand that management has knowledge of how to properly handle such matters. 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.

• Clarify 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 if 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 that 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 to 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 should also 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.

Since 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. Secondly, 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.

About the Author

Patricia S. Eyres is an experienced attorney, with more than 18 years defending businesses in the courtroom. She is a full-time professional speaker and author. Her most popular presentation is "Leading Within Legal Limits.” She can be reached at www.PreventLitigation.com or at 800-LIT-MGMT.

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