Sexual harassment training has been the subject of jokes for decades. All human resources professionals understand how important training is, but getting staff and managers to take it seriously can be an uphill battle. Good anti-harassment policies and regular training can be vital components in the defense of a harassment lawsuit, but weak policies and poor training can do real damage to a case.
The Problem
The reality of some sexual harassment training is well illustrated by a scene in the television show Gilmore Girls, when the following exchange takes place:
Business Owner: Okay, everyone remember your time cards. Punch in, punch out, including lunch and breaks. Okay, now, next on the agenda is something very exciting. The Dragonfly Inn’s first official sexual harassment seminar.
Employee: Ah, finally. Yes, good, talk to them.
Business Owner: Sexual harassment is bad. So no one touch anyone in any funny places unless specifically asked. Moving on.
Employee: That’s it? That’s the seminar? Where’s the speech about people not ogling other people like an object of desire? How about explaining that the way some people walk with a sway or a bounce, it is natural. It is because we work out, and we take Pilates, and—
Business Owner: No one touch Michel! Moving on.
(Season 5, Episode 12.)
This sounds a lot like the discussions some employers have with their employees: harassment is bad, don’t engage in inappropriate touching, and don’t forget to clock in when you start your shift! The real training doesn’t occur until someone does something wrong, and even then it’s behavior-specific training, and does not address the broad scope of behavior that may be considered harassing.
The Solution
Employers should take anti-harassment training seriously, and should consider bringing in a professional to conduct the training and meet with any employees who have complaints following the training. In addition, training should take place regularly, at least once every two years, if not more often. The following guidelines may help in harassment training if you elect to conduct the training in house, or to share with prospective outside trainers.
First, training should address all types of harassment. It is no longer appropriate to limit training (or written policies) to sexual harassment. It should address the full panoply of protected characteristics. In Delaware, for example, that includes: race, color, sex, pregnancy, religion, national origin, disability, genetic information, age (over 40) marital status, sexual orientation, gender identity, military service, and status as a volunteer emergency responder.
Second, training should address the full range of behavior that can be considered harassing. This includes both overt and passive conduct. Unwanted sexual advances are easy to address, but it’s harder to point out the subtle isolation that can occur when you have only one or a few minorities in the group. While isolating conduct (also known as cold-shouldering) does not necessarily rise to the level of prohibited harassment, it gives rise to a surprising number of harassment complaints. For example, consider the group who goes to the bar for happy hour each Friday, and the impact that may have on an employee who does not drink for religious reasons.
Equally difficult to address is the “just joking” harassment. In those instances, the subject of the harassment frequently laughs along in public, while becoming increasingly resentful in private. When the employee hits his limit, he files a charge of discrimination with his coworkers never knowing he’s upset. Comments as casual as teasing a co-worker about his retirement plans have given rise to lawsuits after the employee is laid off in a reduction in force.
Finally, all anti-harassment training should be followed by an opportunity for questions and complaints. Complaints should be handled privately, of course, and not in a group setting. Any employee who believes that he has been the subject of harassment should have the opportunity to describe the situation, and have his concerns addressed in an appropriate manner. While it creates more work for the human resources department in the short run, it should go a long way toward preventing “surprise” allegations, in which the employer had no opportunity to investigate and address misconduct.
For those employers with difficult managers, who look on complaints as failures, remember that a successful anti-harassment policy will result in more complaints at the outset, while entrenched behavior is being corrected. But over time, the rate of complaints should fall, and will result in a healthier work environment with less litigation exposure.
The Bottom Line
Sexual harassment training has become a bit of an ongoing joke, but it’s time to change the script. Harassment claims are easy to bring, and difficult to defend against. An employer’s best bet is to have a strong anti-harassment policy that is backed up by regular training that addresses all types of harassment in a real and meaningful way.
About the Author
Lauren E.M. Russell is an attorney with Young Conaway Stargatt & Taylor LLP in Wilmington, DE, focusing on representing employers in labor and employment matters. She can be reached at 302.576.3255 or lrussell@ycst.com.