The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.
EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.
Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued
their report.
One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)
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Audio Interview: Jonathan Segal Listen to attorney Jonathan Segal talk more about the EEOC report that prompted this article and what it means for HR. |
1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.
2. Confirm that support comes from the highest levels. Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.
3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.
4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.
5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.
6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.
7. Emphasize what is unacceptable vs. what is illegal. Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.
[SHRM members only resource:
Sexual Harassment Policy and Complaint/Investigation Procedure]
8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.
9. Address unlawful harassment in all its forms. Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.
10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”
11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.
12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.
13. Emphasize nonretaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.
14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.
15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”
16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.
17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and New York City. Follow him on Twitter @Jonathan_HR_Law.
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