Bad Medicine: Avoiding the Ills of Ineffective Compliance
Training
Headache
#1: An employer shipped out copies of an expensive video
program to dozens of distant managers without providing
HR staff to either answer questions or ensure that employees
were actually following and learning from the programs. Many
of the managers turned on the videos in break rooms and left
them running while employees came and went. Even though they
collected sign-up sheet acknowledgements from the entire
workforce, all it took was one employee “snitch” witness
to convince the jury that the “training” was
a sham. During litigation, these costly prevention efforts
were worthless.
Headache
#2: During face-to-face anti-harassment training given
by a lower-level supervisor, he let it be known that
he had no use for the training and was just going through
the motions. In subsequent litigation, several employees
noted – and remembered – the real message that
they got from their own managers or supervisors. This display
of organizational cynicism was practically worse than no
training at all.
Headache #3:”You previously stated that your organization
takes harassment very seriously. Please tell the jury how
often you trained your employees and management on the subject.” This
question by a plaintiff’s attorney was followed by
an admission that the organization had failed to spend even
30 minutes in training on the subject and a front line manager’s
inability to define “sexual harassment.” A copy
of the employee manual and monthly memos detailing the policy
were apparently unread – and ignored by the jury.
Jurors are increasingly unwilling to accept a “check
the box” approach to harassment/discrimination prevention
training; they want to see training that is interactive,
memorable, supported by senior management, and delivered
by a credible, well-trained presenter. Courts are also requiring
employers to “put forth evidence of an active mechanism
for renewing employees’ awareness of [their] policies
through either specific education programs or periodic redissemination
or revision of written materials.” Given that a training
program that is insufficient in terms of the quality of its
content will provide little or no protection in the event
of a lawsuit, let’s take a look at the essential components
of an effective training program and identify some of the
most common pitfalls.
Effort
May Count – But Not Much
Let’s
face it; much of the available harassment/prevention training
is of poor quality. One reason is that real mastery
of the nuances of the problems requires a high level of legal
understanding. At the same time it is a practical concept
best understood by employers, managers or others who have
a firm grasp of the day-to-day realities of the workplace.
Many existing training programs fail to integrate the two
disciplines and thus fall short in one respect or the other.
An effective harassment/prevention training program should
be able to accurately and effectively handle both the legal
and practical aspects of harassment/discrimination harassment
prevention.
Another
major reason for the deficiencies in current harassment/discrimination
prevention training is that, up until now, most employers
have viewed anti-sexual harassment training as just that – training,
meaning something you show people or provide information
about, then let them “learn” by doing. Employers,
however, cannot afford to let supervisors try it for themselves
when it comes to learning how to recognize, refrain from,
or properly handle sexual harassment. The stakes are simply
too high. Supervisors and managers not only have to master
complicated concepts in advance, but must also learn proper
techniques for effective prevention and complaint handling.
That requires time, attention, and education, not just training.
Additionally, many employers have until now failed to invest
significant resources or evidence of commitment in the
subject. Anti-sexual harassment training has become something
of a joke or is openly ridiculed at some companies. It
is often considered something to be endured rather than
viewed as an opportunity by ambitious individuals to acquire
a new and important skill. Presented as a necessary and
valued tool, however, especially by top-level managers,
harassment and discrimination avoidance skills could come
to be regarded as a sought-after step up the organizational
ladder.
Who Should Train
The
complexity of contemporary human resource management has
become daunting.
It’s rare if not impossible for
one person to keep current on all the facets – equal
employment opportunity, affirmative action, health and safety,
benefits, employee relations, wage and hour issues, compensation
and a multitude of other compliance issues. Make a mistake
in one of these areas, and your business may be slapped with
a lawsuit. Shackle your senior managers to such matters,
and your competition will surpass you.
To
add fuel to the fire, the quality of harassment/discrimination
prevention training programs has developed into the newest
battlefield in the employment litigation wars. Plaintiffs’ attorneys
and the EEOC have begun to question employers aggressively
as to how much money is spent on training, the expertise
of the trainers, and the curriculum and employee response
to the training. Attempting to present topics such as anti-harassment
or diversity with unskilled trainers or outdated content
can easily lead an organization right back into the liability
tar pit it was seeking to avoid. Increasingly, harassment
complaints include an allegation that the training provided
by the employer, if any, was inadequate or inaccurate. Experts
who evaluate training procedures in light of harassment complaints
will analyze the qualifications of the trainer, and will
critically evaluate every aspect of the training, including
training materials, transcripts of the sessions, and documents
and notes that were taken during the training.
This
trend makes the selection of an outstanding training provider
a critical business issue. The advantages of in-house
HR or training personnel include cost and the fact that such
staff is knowledgeable about the particular workplace, the
employees being trained, and the particular business or industry.
Disadvantages include that such employees are not ordinarily
legally trained and may have an inadequate or out-of-date
understanding of the legal aspects of the subject. Additionally,
they may not be experienced or effective educators on law-related
subjects, they may not be viewed as “neutral” teachers
by either managers or employees, or they may be perceived
as having departmental agendas which conflict with those
of certain managers or other departments. There is also a
marked tendency in any society, including a workplace, to
disregard internal expertise or to read its use as a lack
of commitment.
Professional outside educational providers can present several
advantages. They should be able to offer: legally accurate
and up-to-date analysis as well as practical and realistic
programming; lively, interesting presentations that engage
participants; appropriate educational techniques; and a variety
of formats, follow-up and curriculum options. The most important
disadvantage to using an outside training provider is the
difficulty of discriminating between high quality companies
and the unacceptable ones, of which there is an unfortunate
number. The selection task, always important, thus becomes
critical when choosing among outside providers and virtually
determines whether this is among the best or worst of options.
Other disadvantages include expense and unfamiliarity with
the organization.
Ultimately,
deciding who should conduct your harassment/discrimination
prevention training will depend upon a number of factors – budget,
time frame, HR staff experience, senior management commitment
and characteristics of the particular workforce. One thing
is clear; educational research indicates that students, including
adult learners in a business context, learn better with a
live teacher – especially one they can respect.
Training Mistakes: When the Treatment is as Bad as the Disease
Mishandled training not only may fail to insulate an employer
from discrimination and harassment claims and punitive
damages awards, but also can create its own legal problems.
Accordingly, employers should seek to create training sessions
that are “jury worthy” in tone and language.
Training materials should be drafted and reviewed with
an eye toward possible discovery during litigation. To
further lessen the risk of litigation, a company’s
training program should avoid the following traps:
Documents management stereotypes and biases: Some training
programs ask managers and supervisors to be open and discuss
their feelings about diversity or protected class issues.
Whether this type of self-examination is effective in addressing
bias and prejudice is unclear. What is clear is that courts
recognize no “soul-searching” privilege for comments
made in training sessions. If evidence of self proclaimed
bias gets into the wrong hands, a company could essentially
be building an employment law case against itself.
Asks the learner to make legal conclusions: Some harassment/discrimination
prevention training programs present scenarios and then ask
the participant “Is this harassment?” The learning
points that such a question is trying to cover can be communicated
just as effectively without making a legal conclusion. In
addition, questions that ask for legal conclusions are problematic
in that they can be used as evidence against the company
in the event of a future lawsuit. For example, if a company
is sued because a manager engages in behavior that was defined
as “harassment” in a previous training class,
the plaintiff’s counsel can point to the training program
as an admission of guilt on behalf of the company. Essentially,
the company's hands may be tied because of evidence it created
against itself. See Cadena v. Pacesetter Corp., 224 F.3d
1203 (10thCir. 2000).
Increases
the Organization’s Employment Law Liability
by “Setting the Bar Too High”: In an attempt
to be “politically correct” and to cleanse the
organization of any behavior that could expose the company
to complaints, many employment law training programs set
the “bar” of acceptable behavior extremely high.
For example, in workplace harassment training, a program
may state that any discussion
of personal relationships in the workplace is inappropriate.
While this approach is well-intended, it can actually be
damaging to the organization for the following reasons: 1)
If the program “concludes” that such behavior
is unacceptable, then it has made a legal conclusion that
could be used against the organization in the event of a
future lawsuit, and 2) An overly “sanitized” message
may also spark an unwillingness on behalf of the learner
to take the content in the program seriously.
Focuses only on sexual harassment: The US Supreme Court and
the EEOC have made clear that a harassment prevention program
should address all of the “protected categories.” See
Equal Employment Opportunity Commission, Enforcement Guidance:
Vicarious Employer Liability for Unlawful Harassment by Supervisors
(6/18/99); See also Burlington Indus., Inc. v. Ellerth, 188
S. Ct. 2257 (1998) and Faragher v. City of Boca Raton, 118
S. Ct. 2275 (1998). To be effective, a workplace harassment
prevention training program should address harassment related
to gender, race, national origin, color, disability, age
and religion as well as other “protected categories” under
state law, such as sexual orientation.
Uses Outdated Legal Terms Like “Quid Pro Quo”:
In the past, two types of harassment were recognized: “quid
pro quo” and “hostile work environment.” The
Supreme Court’s decisions in Burlington Indus., Inc.
v. Ellerth, 188 S. Ct. 2257 (1998) and Faragher v. City of
Boca Raton, 118 S. Ct. 2275 (1998) changed the terminology
to reflect the harm caused to the victim rather than the
nature of the offensive conduct. The court identified two
categories of harassment: those involving a “tangible
employment action” (involving some monetary loss or
significant changes in workload or assignment) and those
involving a “hostile work environment.” The former
is commonly referred to as “economic harassment.”
A harassment/discrimination prevention training program that
uses the outdated term “quid pro quo” and that
implies or states harassment occurs even with the threat
of tangible job action is incorrect and sets a standard for
the organization that is actually higher than that set by
federal law. In this respect, the program actually expands
liability, rather than reducing it.
Fails
to Provide Appropriate Content for Appropriate Groups:
One of the greatest challenges in creating an employment
law training program is ensuring that the content communicates
the correct information, while not encouraging employees
to bring lawsuits. Employees primarily require information
about the employers’ commitment to a harassment-free
workplace, assurances against retaliation as well as instruction
on the employers’ policies and procedures, and expected
standards of conduct. Managers need education not only in
recognizing harassment and discrimination and refraining
from it, but also in proper handling of complaints or other
situations possibly raising the issue, as well as such matters
as preventing retaliation and effective follow-up with the
complainant. A thorough discussion of legal liability is
really only appropriate for managers, who need to know more
detailed information about the law, and the specific risks
that misconduct poses to both them and the company.
Focuses narrowly on legalese: Harassment/discrimination prevention
programs are designed to educate employees and managers – not
lawyers or HR experts. Therefore, when discussing “the
law,” a training program should focus on the practical
learning points associated with the content, rather than
the details behind the statutory or case-based legal content.
Employers should focus on what employees most need to know:
what is and isn’t harassment, how to report it and
how to maintain a retaliation-free workplace. Manager training
programs must focus on giving managers and supervisors the
practical tools they need to implement a policy successfully.
Further, managers and supervisors need to know how to interview
for hiring and promotion and how to manage performance in
a way that does not discriminate against anyone on the basis
of protected characteristics.
Fails to Reflect Your Organization’s Specific Workplace
Policies: A harassment/discrimination prevention program
should routinely incorporate an organization’s specific
workplace policies. In fact, if a training program includes
a tracking mechanism that shows receipt and acknowledgement
of that policy, then the program performs the dual function
of training and policy dissemination. In addition to a dissemination
and review of the policy, however, training should include
policy-related issues such as reporting procedures, confidentiality
issues, the conduct of investigations and retaliation prohibitions.
While employer policies should emphasize zero tolerance with
respect to discrimination and harassment, they also must
encourage employees to report inappropriate behavior—with
many options in which to report a complaint, including the
option of reporting a complaint to a person not in the employee’s
chain of command—to ensure confidential and prompt
investigations and to protect victims and witnesses from
retaliation.
Fails
to Replicate a Realistic Working Environment: Many harassment/discrimination
prevention programs use vignettes
and case studies that seem unrealistic and “hokey.” The
types of scenarios presented do not represent the more common
types of situations that employees encounter in the workplace.
This approach is a problem for two reasons: 1) a “hokey” program
that causes chuckles from employees will not be very effective
in showing the seriousness of the problem, and 2) a jury
who has to review the program as part of an employer’s
defense will likely have the same reaction.
Purports
to Address “Discrimination,” But Does
Not Have Sufficient Content: A harassment/discrimination
program should address a wide range of content beyond economic
and environmental harassment. This content would include
all of the various forms of disparate impact and disparate
treatment discrimination that can occur throughout the employment
lifecycle – from hiring, to managing performance to
lawful terminations. Proper training on discrimination can
provide a company with a different type of defense from the “affirmative
defense” associated with harassment training.
The Bottom Line
HR should be defined not by what it does, but what it delivers.
Effective harassment/discrimination prevention is based on
a set of interpersonal skills including critical thinking,
effective communication, and fact-finding. Not only can good
prevention training help avoid and defend harassment claims,
it can improve employee morale and facilitate good work relationships.
On the other hand, inappropriate harassment/discrimination
prevention training will only further mire employers in the
litigation quagmire.
A
sound understanding of the civil rights laws is just a
starting
point in the quest for legal compliance and effective
work relations; it’s the rest of the journey – the
attitude and expertise of the trainer, the quality of the
content, the receptivity of the learners – that determine
how successful the harassment/discrimination prevention program
is in meeting its goals. The savvy HR professional will pick
a harassment/discrimination prevention training provider
who has the emotional intelligence as well as the expertise
and experience to transform a skeptical audience into compliance
partners and more effective communicators.
NEED A SPEAKER FOR YOUR HR AUDIENCE? CONTACT DR.
JOHNSTON
TO SPEAK TO YOUR GROUP!
Dr. Joni Johnston, author of The Complete
Idiot's Guide to
Psychology, is a popular speaker who
speaks to national human
resource audiences on such timely
topics as "How to Turn Employment
Liability into Employee
Retention," "The Psychological Road From
Employee to
Plaintiff: How to Avoid Wrongful Termination Lawsuits,"
and "Dealing With Psychiatric Disabilities at Work."
To contact her to speak to your group,
e-mail
jonij@workrelationships.com. |
