Limiting Legal Exposure for Workplace Harassment

By Patricia S. Eyres
Jan/Feb 2005

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.  Therefore, 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 Human Resource (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.

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 of 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 (for example, "joking" or "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.  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 behaviors that 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 materials 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 responsibilities of the employer, management, and employees 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 or 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. This should be done in the context of the training to answer questions and refer trainees to alternative resources for obtaining further information.

5.   Use effective methodology, designed for maximum understand­ing.

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.  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.

Patricia S. Eyres is an experienced attorney, with over 18 years defending businesses in the courtroom.  She is also a full time professional speaker and author.  She can be reached at 800-548-6468.