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Implicit bias occurs when individuals make judgments about people based on gender, race or other prohibited factors without even realizing they’re doing it.
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But these classes may still be a worthwhile way to help prevent harassment claims
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Civility training should be conducted with National Labor Relations Board decisions in mind.
Employers seeking to discourage workplace harassment by offering "civility training" may face liability under the National Labor Relations Act (NLRA). Such training still may be worth the risk, however, particularly if employer policies promoting civility are written with potential NLRA liability in mind."To some degree, employers are caught between a rock and a hard place," said Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York. "If they promote civility to minimize the potential for harassment, they may be sued by the GC [general counsel] to the NLRB [National Labor Relations Board], and lose before the NLRB."He noted that the NLRB general counsel has said that the following rule, which some employers may want to implement as one way to promote civility, would in fact violate the NLRA: "Be respectful to the company, other employees, customers, partners and competitors." The general counsel has found that this rule would potentially interfere with employees' right to engage in protected concerted activity.Using the same reasoning, the NLRB struck down an employer policy that told employees to "maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers and management."In a June 20 report from the Equal Employment Opportunity Commission (EEOC) task force on workplace harassment, the EEOC stated that "promoting civility and respect in a workplace may be a means of preventing conduct from rising to the level of unlawful harassment."
"That makes total sense to those of us in HR, but sadly not to the general counsel to the NLRB or some members of the NLRB," said Segal, who is a member of the EEOC task force but does not speak on its behalf. Specific Examples
"It is hard to know with certainty what an employer can do without some risk, if an employer is at risk simply by asking employees to be respectful," Segal said. Providing specific examples, such as "speak with colleagues without raising your voice at them," might help to minimize that risk, he noted. However, even this common sense rule might offend the NLRB, which could see it as interfering with robust discussion about the terms and conditions of employment.Use examples that were approved by the NLRB general counsel in a March 18, 2015, memorandum, recommended Patricia Wise, an attorney with Niehaus Wise & Kalas in Toledo, Ohio, and another member of the EEOC task force. She said that acceptable policies as set forth in that memo include prohibitions against:
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