01-01-2013
Just a few weeks into a new year, it is an ideal time for employers to assess their compliance with EEO training regulations and new hire training policies. While many employers may opt to dust off their anti-harassment training DVD’s or shop for the most economical web-based program to “check off” their annual or new hire training requirements, recent developments indicate that those efforts may no longer suffice.
In the recent Seventh Circuit decision, EEOC v. Management Hospitality of Racine, Inc. (7th Cir. 2012), the federal court in Milwaukee, WI, awarded a $105,000 verdict to two teenagers who worked for an IHOP restaurant, alleging sexual harassment by their assistant manager.1 In their defense, IHOP argued that it should not be liable because it took reasonable steps to prevent harassment. IHOP contended that the restaurant had a “zero-tolerance” harassment policy. IHOP further noted that employees were required to watch a sexual harassment video and instructed to bring any sexual harassment complaints to their district manager.
In its ruling, the court stated, “Although management was required to take sexual harassment training, the training was inadequate.” The court declared that IHOP failed to properly address complaints and did not engage in good faith efforts to educate its employees about sexual harassment.
As this case demonstrates, properly educating employees on harassment and discrimination prevention, which may lead to costly litigation, is vital. While there are many options for training employees available, I believe that an in-person employee training conducted by an attorney, experienced in the area of employment law and workplace issues is a sound defense in proving that an employer took reasonable steps to prevent harassment. A qualified live trainer is the most effective method for providing employees with a clear understanding of what is and is not appropriate workplace behavior, as well as training managers on the proper steps to take following an employee complaint.
There are numerous benefits to the live training model. Live training:
1. Can provide an interactive element to the course that allows participants to engage with the trainer, as well as each other
Confusing legal or policy concepts can be misunderstood without practical, real-world applications to clarify those concepts. One exceptionally useful tool for live trainers is the use of video clips that depict real-world scenarios that exist within the workplace. The proper video can provide a relevant dramatization of those concepts to aid the learning process. While videos can be placed in software or web-based programs, trainees may not understand the full significance of the video or fully identify the issues presented within the clip. During live training sessions, a trainer can follow the video with a discussion aimed at gauging the trainees understanding of the potentially inappropriate behavior depicted. A live trainer can also tweak the fact patterns presented in the video clips to give the trainees an even broader understanding of behavior that can lead to a harassment or discrimination complaint.
It is very important that these clips are fresh and realistic to ensure that the videos are able to provide key discussion points, instead of the laughter than can often arise from clichéd and dated clips. Take for example, the following “teaser” clip from Employment Practices Solutions, Inc., which demonstrates a pertinent scenario that could occur in any workplace:
EPS Anti-Harassment Training View
Following this video – which opens the door to a myriad of discussion points, a live trainer could initiate a class discussion of the issues presented in the video. The trainer could then tweak the facts to ask trainees to consider a scenario where the woman in the video previously bragged about her recent weight loss and ask the participants if that added fact would change their opinions. Additionally, the trainer could inquire as to whether the man in the video “intended” to be offensive with his compliment. This could lead to a discussion of why it is absolutely critical to understand that perception, not intention is key to maintaining a respectful workplace. These are only a few of the many ways that a live trainer could engage the group and help them to begin to think about the possible effects of their words and actions in the workplace.
In addition to the most meaningful use of video clips, an in-person experienced trainer can increase employee comprehension with the use of a wide range of interactive case studies and hypotheticals. Additionally, an in-person, experienced trainer can also recall real world examples of previous scenarios that the trainer has encountered in her profession to further clarify the consequences for inappropriate behavior. These interactive tools can help to ensure that employees are not only able to absorb the information, but are also able to properly translate it to their actual workplace.
2. Allows for questions and ANSWERS
An important aspect of live training is the ability for the trainees to ask questions, and, even more importantly, to have those questions answered immediately. As both employers and employees can attest, employment law and human resources policies can be confusing and create uncertainty about the subtle nuances of workplace behavior that may or may not be appropriate. While a web-based or online program can provide key information, trainees are often left with more questions than they had before completing the online program, as they are presented with new topics and “legalese.”
As more questions arise, employees begin to recall workplace experiences that they believe fall under some of the workplace violations discussed during the training. A live trainer can ensure that questions are properly answered to avoid a training session that may actually increase your legal risks by turning trainees into misguided “HR professionals.”
Significantly, with mounting harassment claims and hefty verdicts, it is imperative that managers, in particular, are able to ask questions about their response to an employee complaint of harassment or discrimination. Managers should leave the training with little doubt about their responsibilities and appropriate course of action following a complaint. A live trainer can reinforce the company’s policies and provide answers about management’s role in reducing legal exposure.
3. Provides current and applicable material to the trainees
Live trainers afford the trainees with information as up-to-date as the day of the training. Changing laws and social conditions mean that workplace policies are subject to change at any time. A live trainer can ensure that the information provided remains accurate and relevant. With shifting “hot button” issues such as the legalization of marijuana in some jurisdictions, the use of social media and a variety of new LGBT issues within the workplace, current and up-to-date instruction is essential to ensure that your employees are fully aware of the latest trends. If it has been quite some time since your last harassment training or your online training is not current, you could be at risk for claims based on more recent forms of harassment.
4. Can be customized to areas that may be of specific concern within your company
Every workplace is unique. Therefore, a “one-size-fits-all” approach is not the most effective method for employee training. A live trainer can discuss your company’s specific training needs with your human resources professional prior to the training session. This will allow the trainer to tailor the content to meet your company’s specific needs. The trainer can also integrate your company’s policies into the training and provide an in-depth discussion of those policies with the participants. In addition to content, a live trainer can also customize the length of the course. The course can run from several hours to a full day or multiple days, depending on the topics covered and your specific needs.
Additionally, a live trainer can prepare separate courses for employees at different levels within the company to be conducted on the same day or over a period of days. For example, a live trainer could prepare a morning course for management and an afternoon course for non-management employees. Topics that may not be applicable to everyone in the class can lead to boredom in some trainees because the material presented is inapplicable or too elementary. Alternatively, some trainees can become discouraged because the material is too complicated and the goal of the training will be hindered from the beginning.
In addition to group training, a live trainer can also provide a one-on-one course for a single employee that may require additional or individual hands-on training in a more personal setting with materials tailored to that employee’s specific needs. Understandably, a live trainer is best suited to hold the attention of an individual and provide engaging discourse instead of simply placing the participant in a room alone with a computer to complete the training.
Finally, a live trainer can measure the mastery of the material with a quiz at the end of the training session. The trainer could discuss the answers with the participants and carefully explain any missed questions for clarity.
5. Reduces the liability associated with failing to properly train employees
The 2012 EEOC Performance and Accountability report shows that the EEOC secured a historic monetary recovery of $365.4 million through its private sector administrative enforcement--the highest level of monetary relief ever. 2Undoubtedly, employment claims and the subsequent relief awarded is escalating at historic rates. As noted, employers have the ability to proactively minimize their risks of facing these claims with proper training.
“In Burlington Industries, Inc. v. Ellerth, 118 S. Ct. 2257 (1998), and Faragher v. City of Boca Raton, 118 S. Ct. 2275 (1998), the Supreme Court declared that employers facing employee claims that did not culminate in a tangible employment action, may be able to avoid liability or limit damages by demonstrating that:
- the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and
- the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise."3
As discussed, just any type of anti-harassment training will not suffice to satisfy these elements. It is the employer’s responsibility to demonstrate that the training provided was sufficiently adequate and informative. While no form of training, whether in-person or via computer, ensures that your company will escape an allegation of harassment or discrimination, when standing before a judge and jury, the employer will fare best if they are truly able to demonstrate that they did everything in their power to ensure that their employees were best prepared for the workplace.