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Training on harassment and discrimination is not a luxury anymore.
In the six years since the U.S. Supreme Court broke new ground in three landmark employment discrimination cases, courts and juries regularly have been called on to determine whether employers took reasonable steps and made good faith efforts to prevent unlawful workplace harassment and to comply with discrimination laws. Today, this much is clear: having non-discrimination and nonharassment policies is probably not enough.
Increasingly, courts are looking at whether and to what extent the employer uses education and training to prevent harassment and discrimination. Employer training efforts and programs undergo such thorough judicial scrutiny and are mentioned in so many cases that development of a new body of employment law is emerging: the law of training.
Although not just about training, the high court’s 1998 decisions in
Faragher v. City of Boca Raton and
Burlington Industries Inc. v. Ellerth and its 1999 decision in
Kolstad v. American Dental Association have rendered antiharassment training a workplace essential.
Faragher and Ellerth provided employers with a new defense to sexual harassment claims. In those cases, the Supreme Court indicated that an employer may be able to minimize its liability in a harassment case if it can prove that it took “reasonable steps to prevent harassment.” Training is considered one of those preventive steps. (For a broader and more detailed analysis of the law evolving from these cases, see “The
Faragher/Ellerth Decision Tree” in the Legal Trends column of the September 2003 issue of
Kolstad prompted employers not only to enhance their harassment training efforts, but also to expand their training to cover the discrimination laws in general. In that case, the court provided a defense against punitive damages to employers who exercised “good faith efforts to comply with the discrimination laws.” Again, courts often consider training as one example of an employer’s “good faith effort to comply.”
Although courts have not yet stated unequivocally that training is a “legal obligation,” they so frequently take it into account that employment lawyers and seasoned HR professionals consider it a must. Without it, defending a harassment or discrimination claim can be very difficult. With it, employers in many cases stand at least a chance of minimizing their exposure.
Subjects of Scrutiny
The “law of training” is still developing. This is expected to continue, as courts provide more guidance on the “who, what, when, where and how” of training. In the meantime, employers and their counsel glean as much as they can from the training cases to ensure their programs pass legal muster.
Here’s what case law shows so far.
Courts, however, tend to focus on formal training programs. They may not view informal methods of training as adequate substitutes. Because courts take into account an employer’s actual commitment to training, they may conclude that an employer that has implemented formal training is fully committed to preventing harassment and complying with discrimination laws.
In a racial harassment case, for example, the question is whether the employer provided training on racial harassment. If the case involves failure to accommodate under the Americans with Disabilities Act (ADA), the relevant consideration is whether the employer trained supervisors on the employer’s obligation to reasonably accommodate.
It is impossible to know in advance what types of claims might arise, so ideally, training should cover all of the following:
If an investigation is perceived as inadequate, the responsible HR professionals and supervisors may find themselves serving as key witnesses for the other side. Plaintiffs’ attorneys are now grilling the employers’ internal investigators—who are more accustomed to serving as witnesses on behalf of the employer—to ascertain the extent of their legal knowledge and their investigatory skills and credentials.
It is not enough just to provide training; training must be “effective,” some courts say. But so far, they have not provided any definitive guidance on what amounts to effective training. Plaintiffs’ attorneys have latched onto this, using “lack of effectiveness” as a new line of attack.
Employee advocates may question whether the trainer was a true subject matter expert with sufficient knowledge of the law.
Training materials may fall under attack: Do they include the necessary content and accurate statements of the law? (Legal inaccuracies are lightning rods for criticism.) Do they adequately explain the meaning of “unlawful harassment” and “unlawful discrimination”? (These fairly complex issues frequently are oversimplified in training materials.)
Employers should review materials for possible “admissions against interest” -- for example, categorical statements that certain conduct constitutes unlawful “harassment” when in fact it might not. These can come back to haunt you. Make sure printed or online materials include a date, making it possible to determine readily what materials were used during the relevant time period.
Some other common problems with training materials that make them vulnerable to challenge are failure to provide supervisors with supplemental information on their special obligations under both the law and the employer’s policies, failure to provide easily understood tips to nonsupervisory employees on how to avoid being harassed, and failure to cover the types of corrective or disciplinary action that could be imposed for violations.
The duration of the training program might be an issue: Was it adequate to discuss the subject matter? Also, the training results could prove to be problematic: Did the employer measure whether the training was effective through use of a quiz or other device?
Beyond these basics, opposing counsel are using more and more creative weapons to attack the sufficiency of the employer’s training. Here are a few:
Another offensive strategy is to compare the advice provided in the training to actual practices: Are employees and supervisors behaving as called for by the training? Or are there still too many internal complaints of harassment or discrimination after the training is conducted?
An Ounce of Prevention
If all employers had unlimited financial resources, manpower and time, they could put together some pretty impressive, razzle-dazzle training programs. Although most employers may not be able to afford show-stopper training, they should be able to avoid many of the training weaknesses identified in this article with relatively easy and cost-effective fixes. Investing a reasonable amount of time and money now to develop legally sound training programs, to have existing ones reviewed for legal sufficiency, and to ensure that trainers and investigators have subject matter expertise may save substantially more in attorneys’ fees and defense costs down the road.
Editor’s Note: This article should not be construed as legal advice or as applying to specific factual situations.
Sue K. Willman, SPHR, is an employment lawyer in the labor and employment practice group of Spencer Fane Britt & Browne LLP in Kansas City, Mo. She has more than 25 years of combined experience as a human resources professional, in-house human resources counsel and private practitioner.
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