Is Your Anti-Harassment Training Making the Grade?
Miller & Martin PLLC Alerts | March 31, 2017
Author: Stacie Caraway
Is Your Anti-Harassment Training Making the Grade?
If your initial response to this question is, "What anti-harassment training? Are we still supposed to be doing that? Isn't that kind of 'old school'?", your first step needs to be planning anti-harassment training in 2017.
When the economy was declining in 2008-2011, many employers cut down on their training programs as a means of tightening their budgetary belts, particularly those programs involving "soft skills" like not harassing your co-workers and subordinates. Then once the economy began to rebound, some employers did not resume the pattern of providing annual or at least bi-annual anti-harassment training.
The effects of this neglect are continuing to be felt however. Of the 5 lawsuits the EEOC filed against employers in Tennessee in 2016, 2 of the 5 involved harassment allegations. The EEOC also has created a "Select Task Force on Harassment," and a focus on "preventing systemic harassment" remains part of the Agency's "Strategic Enforcement Program," in response to the fact that roughly a third of all EEOC Charges filed in both 2015 and 2016 nationwide involved harassment allegations.
So, in planning your anti-harassment training for this year, here are some things to keep in mind.
In-Person Is Best
While we realize this option is not always financially viable if your workforce is spread out across the country, if logistically it is possible, providing "live" anti-harassment training versus a video is best for several reasons.
- First, even with little "quiz questions" to make sure your employees complete the training and are paying attention, a video makes harassment appear unreal -- literally like something you watch on t.v. but not that happens in "real life."
- Second, video training cannot be customized to your workforce as live training can be.
- Third, video training makes it impossible for employees to interact or ask questions about possible real-world situations. This issue can be somewhat overcome by reminding employees as part of the video training that HR is available to answer their questions at any time. So, while "in-person training is best," a video is still better than nothing.
Not All Anti-Harassment Training Materials Are Created Equal
If you decide to use a video, make sure you have actually watched it -- rather than just relying on the recommendation of someone who let you borrow their video, said it worked great for their workforce, etc. Some of the anti-harassment training tools that are out there truly are "old school," meaning they were created back in the 80's or 90's. The content of older training videos may no longer be relevant to today's workforce and may not even portray an accurate picture of the current status of the law. It wouldn't be a bad idea to ask your employment attorney to watch the video before you use it for this reason as well as those discussed in the next sections.
Update the Content
Along with advocating in-person training, the EEOC's new proposed Harassment Guidance also urges employers not to focus on egregious examples of harassment in their training. Most employees know not to use racial slurs or physically grope others (if not, you definitely need to change your anti-harassment training content and format!). But what they may not realize can "cross the line" are more subtle forms of harassment, such as going around massaging peoples' shoulders because "you think they look stressed" or hugging or otherwise touching others because "you think they look sad today." Many employees mistakenly believe that the standard for harassment is "treat others as YOU would like to be treated" when the actual standard is "treat others as THEY would like to be treated." It is a subjective "in the eye of the beholder/receiver" test, not one of the actor or speaker's good "heart" or "motives" being judged.
The EEOC advocates that anti-harassment training should focus more on general respect and civility rather than merely avoiding egregious conduct or words that "could get the company sued."
Another reason to give some serious thought to the content as well as the form of your anti-harassment training is that this training could become a key exhibit in a harassment lawsuit. Choosing a video or other material based on its ability to engage your workforce with humor or shocking examples may make it appear to a jury that you believed anti-harassment training was a joke/did not take it seriously -- perhaps making it clear to them WHY your company is now in court facing a harassment suit -- and why they should rule in favor of the complaining party.
Supervisors Should Receive Different Training than Non-Supervisory Employees
While all employees should receive training on your company's anti-harassment policy and a general overview of the types of conduct which are prohibited under it as outlined below, you should also at least every other year provide additional training to supervisors regarding their obligations when they see harassment or it is otherwise reported to them and also reminding them of your anti-retaliation provisions regarding not just those who report harassment but all those who participate in an investigation of the same.
Make Sure "Outsiders" Are Covered
The focus of anti-harassment training often is supervisor harassment then some mention of co-worker harassment. Be sure you also tell employees what to do if "outsiders" -- vendors, contractors or even customers -- harass them.
Make Sure Communications Outside of Work Are Covered
Again here, the focus of anti-harassment training is usually on scenarios which happen on the plant floor, in the office, etc. Be sure to also tell employees what to do if harassment occurs outside the workplace via social media, e-mail, text or voice-mail messages, videos or other images, unwanted Facebook posts or repeated "friend" invites, etc.
Make Sure All Protected Groups Are Covered
Finally, make sure the focus of your anti-harassment training goes beyond just sex and race harassment to also provide examples of inappropriate comments and conduct relating to age, pregnancy, national origin, color, disability, genetic information, military service and religion.
Miller & Martin provides anti-harassment training for employers year round. So please contact Stacie Caraway or any other member of our Labor and Employment Law Practice Group to schedule such training or for other assistance in making such training effective.