In tough economic times, harassment training tends to be
viewed as a luxury that can be gone without until things get better.
I understand this thinking, but harassment training on a
regular basis is never a "luxury." It's a "cost of doing
business." That is the reality. Here are five reasons why:
*Turnover. If it's been, say,
five years since you last had harassment training, that means you have a whole
bunch of employees who have never had it -- at least, not with your company. If
you don't offer harassment training on a regular basis, how are you going to
prove that your newer employees knew what behavior to avoid, or what to do if
they were victimized? ANSWER: You won't.
*Evolving law and social conditions.
There have not been radical changes in harassment law for a long time, but
there has been evolution that makes a program only a few years old seem naive
and even quaint. Looking back at my older programs, they were very focused on
"traditional" scenarios involving straight men and women telling
dirty jokes and having extramarital affairs that went wrong, like General
Petraeus and Paula Broadwell.
Now, the courts nationwide have recognized certain types
of same-sex harassment as a form of "gender stereotyping" that
violates Title VII, and many states have laws prohibiting "LGBT"
discrimination, so we spend a lot more time on that subject than we used to. We
also place more emphasis now on harassment based on race, national origin,
religion, age, and disability. Over the years, the EEOC has placed increasing
emphasis on retaliation, so we spend a lot of time on that. We talk more about
the emerging issue of "bullying" now. Not to mention misuse of the
internet and social media, which we were barely even thinking about a few years
ago.
All of which means, if you have had a long hiatus from
harassment training, your training will not be current, and you could be at
risk for claims based on newer, "hipper," more modern forms of
harassment.
*People forget.
Even if you had bang-up, Cadillac Escalade-level harassment training three
years ago, I can guarantee that everyone who was in that class has forgotten
something important. You know it's true. And I'm talking only about the
people who attended the training, of course -- the newer hires haven't heard
anything that they can forget.
*It may be legally required, depending on
where you live. Some states, including California, require
employers to provide harassment training to management. If you're in one of
these states, you cannot postpone training. It's the law.
Please take a minute and visit Eric Meyer's The
Employer Handbook, which was host this week to the November edition of
the Employment Law Blog Carnival. My post from last week about Obama 2.0 is
featured there, as well as some great stuff from other employment law and HR
bloggers. Thank you, Eric!
*It's expensive . . . until you get sued, and
then in hindsight it was a steal. Yes, any harassment
training costs money. You may think you don't have the money to spare, and I am
sure you are right. But the legal fees to defend an EEOC charge will almost
always exceed the cost of the training, and if you get a lawsuit, they will
definitely exceed it big-time. Legal fees to get to summary judgment may run
you about $50,000 or more, depending on where you live and the complexity of
the case. If you don't get summary judgment and have to go to trial, your
attorneys' fees may be more like $100,000, not including the plaintiff's
attorneys' fees, which she is entitled to recover if she wins. And, of course,
not including her award if she wins, which you will have to pay. And, as
Chrysler found out, could be substantial.
Four-point-five million dollars? That harassment training
just got real cheap, didn't it?
Seriously! One of the first
things you'll be asked by the EEOC or a plaintiff's attorney is how recently
you conducted harassment training and whether the parties involved in the case
(the alleged victim, the accused, and any witnesses, as well as the people who
investigated) attended. If you can say, "Oh, yes, we had training just six
months before this all came about, and here are the attendance sheets showing
that everyone completed the training," then that is good. In fact, that may provide you with a
complete defense to the harassment claim. Wouldn't that be nice?
But sometimes what happens is that the rank-and-file
employees testify truthfully that they don't even know what
"harassment" is, and the managers "don't recall" the last
time they had training because it was, in fact, last conducted before they were
born.
Interested in seeing a sample of an interactive,
computer-based harassment training program? Here
is a "Petraeus-like" segment from a program that my law firm offers.
The cost of harassment training should never be an
obstacle to an employer. Many law firms (including my own) and Human Resources
consultants and employers' associations will do harassment training on a
flat-fee basis so that you can plan for the expense with no surprises. You may
have in-house counsel who is capable of doing the training, and if so, even
better -- in that event, you don't have to pay anything extra for the
training. If your turnover is too high to make "live" training
practical, or if your employees are scattered to the four winds so that
bringing them to a single location for live training isn't practical, you can
go with a computer-based
interactive program, a video-workbook combination, or even just a passive
videotape (not as good because it isn't interactive, but definitely better than
nothing). You can use some combination of these -- for example, by having live
training once a year for management, and computer or video training for
new-employee orientations in the interim. The possibilities are endless!
PLEASE NOTE: Having regular, current,
high-quality harassment training is not a guarantee that you won't get a
harassment charge or lawsuit, and it's certainly no guarantee that you will
win. But our experience has been that employers who keep up with their training
achieve a real benefit from it because employees are encouraged to speak up
early, which allows the company to resolve the complaint internally before
irreparable damage occurs. And courts have recognized effective training as an
element of an employer's defense to some types of harassment cases.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
For more information about LexisNexis
products and solutions connect with us through our corporate site.