Legal Trends

By Jonathan A. Segal Feb 1, 2007

HR Magazine, February 2007 Unlimited Check-Writing Authority for Supervisors?

EEO training cuts widen costs.

Of course, you would never give your supervisors unlimited check-writing authority. But that’s exactly what you have done if you give them supervisory authority without training on harassment, discrimination and retaliation.

While there are limits on compensatory and punitive damages under federal law, there may not be any comparable limits under state law. If your supervisors are not properly trained on equal employment opportunity (EEO) essentials, they are more likely to do or say things that will result in legal claims.

As most companies by now have realized, the absence of EEO training can lead to liability and larger damage awards. Consequently, most responsible employers now provide some EEO training to their managers and supervisors. There’s a big difference, though, between “some” training and comprehensive training. As with any other employer program, legal and human resource problems may arise in terms of the “how.”

These problems can be kept to a minimum, and the business value of EEO supervisory training can be maximized, by shoring up current deficits in your general EEO training program.

Conspicuous Absences

Most companies do provide training on sexual harassment as part of their Title VII compliance, and such training now is specifically required by some state laws such as California’s AB 1825.

The management training revolution for EEO issues began in earnest long before AB 1825, with the imbroglio during the 1991 confirmation hearings for now U.S. Supreme Court Justice Clarence Thomas.

The importance of offering training was reinforced by the U.S. Supreme Court in the 1998 Faragher/Ellerth decisions, in which the Court created an affirmative defense available in some harassment cases based on prevention and correction. While the Supreme Court did not specifically require training for an employer to satisfy this defense, training clearly is helpful in establishing the requisite prevention (and, in some cases, correction).

Commission (EEOC) went a step further, all but requiring management training on sexual harassment. More specifically, the EEOC has stated: “An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s antiharassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.

Such training should explain the types of conduct that violate the employer’s antiharassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.” (See EEOC Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors, June 18, 1999, at Section V(C)(2)).

But a common oversight in harassment training is focusing on sexual harassment to the exclusion of the numerous other kinds of unlawful harassment. While it is critical that employers provide training on sexual harassment, it is equally important that employers provide training on other kinds of unlawful harassment, such as racial, ethnic and religious harassment. The failure to address other kinds of unlawful harassment is a conspicuous absence, which may be argued in litigation as tacit support for, or at least deliberate indifference to, such other kinds of unlawful harassment.

In fact, the EEOC, with the approval of many courts, has held that the Faragher/Ellerth affirmative defense applies to harassment on account of factors other than gender (see Spriggs v. Diamond Auto Glass, 242 F.3d 179, 186 n.9 (4th Cir. 2001)).

Further, according to the EEOC, the number of sexual harassment claims filed with federal and state agencies has declined. In fact, looking only at federal claims, the number of racial harassment claims now exceeds the number of sexual harassment claims.

Accordingly, employers need to make sure that their training is not preoccupied with sexual harassment and that it covers other kinds of unlawful harassment too.

Providing training on all kinds of unlawful harassment is necessary but still not sufficient. Employers also need to train managers and supervisors on EEO issues beyond harassment, namely:

  • Discrimination in employment decisions.

  • Retaliation against complainants, witnesses and others who participate in the investigatory process.

  • Reasonable accommodation, not only for persons with disabilities but also in response to religious beliefs, practices and observances.

value of General EEO Training

Providing training on EEO generally (as opposed to harassment only) is critical for at least three reasons. First, it will help to avoid claims in the first instance by deterring problematic conduct or comments that may be seen as evidencing an unlawful intent. As we all know, sometimes managers take actions for legitimate reasons but say things that may suggest otherwise.

Second, the training also may help employers prevail if sued. Even though there is no affirmative defense based on prevention and correction for discriminatory or retaliatory employment decisions (promotions, demotions, etc.), EEO training is one factor that a jury may consider in determining whether to impute to an employer the inappropriate conduct or comments of an individual manager or supervisor.

Finally, the training is critical for avoiding punitive damages. Generally speaking, the courts have held that punitive damages may be awarded where an employer has shown “reckless disregard” for its legal obligations. Whether there is reckless disregard justifying punitive damages may hinge on whether there has been supervisory training.

Providing training to minimize exposure to punitive damages is particularly important because, in many states, employment practices liability insurance cannot cover punitive damages. The theory is that coverage for punitive damages would be a violation of public policy. Even in those jurisdictions in which punitive damages may be insured, some policies still exclude them.

Training on discrimination, retaliation and reasonable accommodations can be integrated into other training programs (e.g., hiring, performance management), or it can be provided as a separate stand-alone. What matters is that the content be delivered.

EEO Orientation For New Managers

Even when employers provide comprehensive EEO training to their supervisors or managers, the question becomes when to provide it. Here, there is a potential clash between the legal ideal and the practical reality.

As a legal matter, anyone who is hired or promoted into a supervisory or managerial position should receive EEO training before he or she begins to exercise his or her EEO authority. Otherwise, the callow supervisor or manager may say or do things that give rise to liability (or at least claims).

As a practical matter, it may not be possible to offer comprehensive real-time EEO training to every supervisor or manager before he or she exercises any supervisory authority. This is particularly true for smaller businesses that may not have adequate training resources. Viable alternatives to real-time training may include webinars, interactive e-learning or a video with the opportunity for questions and answers afterward as part of the orientation process.

Orientation on EEO responsibilities should cover, at a minimum:

  • The protected groups under federal, state and local law.

  • The employment decisions to which the protected groups apply (all of them).

  • To whom supervisors and managers should report questions or concerns on what may be legal issues.

  • Examples of inappropriate behavior inconsistent with the employer’s antiharassment policy.

Providing training on EEO essentials, often lacking in supervisory orientation, is at least as important as providing guidance on other topics often included, such as the conference room policy.

Blank Looks

While it is critical for employers to explain the legal climate in which supervisors and managers must function, employers need to be careful that they are not too legalistic. If the training is legally cumbersome, supervisors and managers very well may tune out. Talking about cases is fine, but only if to demonstrate practical applications.

Even if the training is practical in its approach, it is still important that the training not overstate the law in an attempt to pique trainees’ interest. Two of the more common overstatements are failing to distinguish between what is recommended vs. what is required, and between what is illegal vs. what carries with it legal risk.

For example, using uniform questions is legally recommended but not required. Rejecting an applicant for not being a good “fit” is not illegal on its face but carries with it some legal risk relative to whether conscious or unconscious bias underlies it.

On the other end of the employment relationship, providing written warnings to an at-will employee prior to termination usually is not legally required even though it may be recommended. Terminating an employee for poor performance who happens to be pregnant is not illegal in terms of the reason for the termination but carries with it legal risk depending on the timing and the “comparators.”

Overstating the law in training may unnecessarily restrict supervisors, with the result being that they don’t do things that they lawfully could do or they do things that they don’t have to do. For example, a supervisor may not terminate a poor performer, with the resultant costs from retention of mediocrity.

Just as important, overstating the legal requirements and risks may create supervisory paralysis. When this occurs, there may be not only business risks but also legal risks.

Marginalized Workers

The overstatement of legal requirements and risks and a resulting supervisory paralysis can be particularly problematic in performance management and harassment.

Assume a white male supervisor has two subordinates who are equally mediocre in their performance; one is a white male, and the other is a woman of color. The supervisor may be afraid to confront the woman of color on her performance problems for fear that the confrontation may be seen as discriminatory. So he avoids her but hits hard the white male, with whom he has less legal concern.

At first blush, it may appear that the supervisor is discriminating against the white male by being tougher on him. However, the opposite may be true. By confronting the white male, the supervisor is providing him with the feedback he needs to succeed.

By not confronting the woman of color, the supervisor is depriving her of the feedback she needs to succeed. In other words, the fear of discrimination claims produces avoidance that is the discrimination that produces a discriminatory result.

A similar dynamic may occur with regard to harassment. Employers understandably and appropriately define broadly the kinds of behaviors that are unacceptable (even if they are not necessarily unlawful). Further, most training programs appropriately emphasize how gender is one factor that may affect perspective— what the EEOC and some courts refer to as the “reasonable woman” standard.

“A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women” (Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)).

When you couple a broad definition of inappropriateness with a recognition of differences in perspective, the training can have an unintended but still substantial adverse consequence. To protect themselves from harassment claims, some senior-level men avoid those who may misperceive their motives -- in other words, women.

The sad reality is that, for some men, discrimination in the form of avoidance is the strategy for protecting themselves from harassment claims. This may result in the absence of mentoring opportunities as well as social inclusion, fortifying the glass ceiling with cement.

It is critical that EEO training address these very real concerns to ensure inclusion rather than increased marginalization. For example, with performance management, the message should not be that employers need to manage certain employees more gingerly but rather that employers need to be consistent in communicating and measuring performance expectations.

With career management, guidance should be given for how supervisors can engage in cross-gender mentoring and socializing without risking harassment claims.

The bottom line is that, today, at least at the top, discrimination often is based on acts of omission rather than acts of commission. Scare your supervisors and managers too much and you may actually increase your legal exposure.

Where Does The Buck Stop?

While you don’t want your supervisors to become apoplectic in response to legal risk, you don’t want them to be cavalier either. There are certain issues that they should not try to handle on their own. For this reason, it is recommended that the EEO training distinguish between problems that we want supervisors to resolve and problems we want them to report without resolving. For example, if an employee is late for work, we want the supervisor to counsel him about the need for punctuality. However, if the employee states that he is late for work because of chemotherapy treatments, we want the supervisor to consult with HR.

The reasonable accommodation dialogue is deceptively complex. We don’t want supervisors obtaining medical information to determine whether a person has a disability, determining what functions are essential or assessing whether a proposed accommodation would be reasonable. We simply want them to bring the issue to HR’s attention so that HR can ascertain whether and how to start the process.

Disclosures of medical problems in response to counseling, discipline or an evaluation is only one example of the type of occurrence that supervisors and managers should report rather than resolve.

Other examples include allegations of unlawful discrimination, harassment or retaliation, even if the employee specifically requests that the supervisor not report it.

Set the Right Tone

When it comes to training, the underlying message in terms of relationships is as important as the content of the message. For example, in asking supervisors and managers to report certain legal issues to HR, neither the words nor the music should be that supervisors and managers are less capable than HR.

Rather, the question is how to allocate responsibilities based on expertise. Supervisors and managers presumably would not try to resolve accounting or environmental compliance issues on their own when these issues were outside their bailiwick. The same is true of HR issues with legal implications.

A similar concern relates to how the “protected groups” are discussed. The very use of the term “protected” can result in a paternalistic approach to legal compliance that sometimes is incorrectly heard as suggesting that certain groups are more needy in terms of management support.

The message of training needs to be that the need for protection arises not from inherent limitations of those being protected but from societal and individual bias against them. To make this clear, it is helpful to focus EEO training on empowering talent by removing obstacles.

Diversity Link

To add further muscle to the argument, employers may want to dovetail EEO compliance with the organization’s commitment to diversity and inclusiveness, which characteristically goes beyond mere legal compliance.

In other words, the imperative for quality demands that we include rather than exclude all communities of potential talent at all levels of the organization. Emphasizing the link between EEO compliance and diversity/inclusion not only helps to position the training in a positive light relative to the “protected groups” but also helps supervisors and managers see the potential business benefits to them. Supervisors and managers may respond more favorably to EEO training if they see the law as establishing values that coincide with good business practices.

Post-training assessments designed to measure whether a participant has retained the training content are great, unless a supervisor fails, in which case the failure may be discovered if the employer is sued. (See “Keep Some Discussions Offline,” above right.)

Assume a supervisor allegedly considered race or color in the decision-making process of a promotion decision. The fact that the supervisor failed the posttraining assessment twice may add a zero to the plaintiff’s settlement demand.

Make Training A Success Story

This does not mean that employers should avoid post-training assessments. What it does mean is that the value of the assessment should be balanced against the risk and that steps should be taken to minimize the risk if the assessment is used. For example, let supervisors know that they will have to repeat the entire training program if they fail the test so that they have a personal incentive to focus the first time.

Unfortunately, managing employees has become a legal battleground. Providing training to supervisors and managers is important not only to minimize legal risk; it is also critical so that they have the tools they need to succeed -- tools that should not include unlimited checkwriting authority.

Author’s Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan A. Segal, Esq., is vice chair of Wolf Block’s Employment Services Group and the managing principal of the Wolf Institute, the training and educational arm of the Employment Services Group. Jonathan’s practice concentrates on preventive planning, counseling and training to maximize an employer’s legal compliance and to minimize an employer’s exposure to litigation and other adversarial challenges.

Web Extras

SHRM resource:
Workplace Law Focus Area

SHRM articles:
Resolve or Report?
(HR Magazine)

Retaliation Nation
(HR Magazine)

Training and Development

Keep Some Discussions Offline

Sometimes it is said that there is no such thing as a stupid question. There may not be stupid questions, but there sure are expensive ones.

Training is not privileged from discovery when an employer is sued, so questions that participants ask during training can be used against the employer later in litigation. Accordingly, at the beginning of training, it is generally recommended that participants be told that they should not ask questions about any actual employment problems.

Some supervisors may not ask questions about actual problems but may respond negatively to the training as a whole. Some may have hostility toward it because of the legal component. Others may comment that the training is political correctness having gone too far.

Trainers need to facilitate the dialogue away from problematic statements. If a supervisor or manager begins to make statements that may sound hostile to EEO protection, the trainer should try to reframe the statement to remove its incendiary quality. If the supervisor or manager continues to push the issue, end the discussion and tell the individual you will talk with him or her offline.

EEO training also sometimes asks participants to open up about biases that they may have. For example, assume a trainer asks employees to share what they see when they visualize a CEO. Assume further a manager admits that he sees a white man. If that manager subsequently selects a white man over a woman or person of color in a promotion decision, the statement made in training may be used against the employer.

Trainers should avoid exercises that may create potential admissions against interest. There are effective ways to get at bias without having participants publicly admit theirs.

—Jonathan A. Segal


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