Use anti-harassment training to shelter yourself from suits - Focus on Training - legal aspects of anti-harassment training

HR Magazine, Oct, 1999 by Marjorie A. Johnson

Training supervisors and employees to avoid sexual and other forms of harassment has always been important, but recent developments have made such training even more vital.

This summer the U.S. Supreme Court ruled that employers may escape liability for punitive damages under Title VII of the Civil Rights Act of 1964 if they can prove that a supervisor's discriminatory conduct violated the company's equal employment policies (Kolstad v. American Dental Association, 98-208). Companies that can prove they provided anti-harassment training to supervisors will be able to provide compelling evidence that this was the case.

In addition, last year the Supreme Court issued two decisions (Faragher v. City of Boca Raton. 97-282 and Burlington Industries Inc. v. Ellerth, 97-569) stating that employers are automatically liable for sexual harassment by their supervisors - unless a supervisor's harassment did not result in tangible harm to the employee and the company can show that:

* It acted reasonably to prevent and correct the harassment.

* The employee acted unreasonably by failing to use internal processes or otherwise prevent the harm.

The Equal Employment Opportunity Commission (EEOC) and federal courts of appeal have since made clear that these decisions apply to all forms of harassment.

Companies that train supervisors and employees to prevent sexual harassment will be able to show that they acted reasonably. Further, they will be able to show that employees were informed of the company's complaint procedures but failed to use them.

And, as if all these legal developments weren't enough, the EEOC recently issued a guidance that directs employers to provide anti-harassment training.

Despite these incentives, however, rank-and-file employees - who are most often involved in sexual harassment disputes - receive the least amount of prevention training, according to the SHRM Sexual Harassment Survey, released this year.

To make matters worse, employees are filing employment-related lawsuits in ever greater numbers. According to the 1999 Employment Practices Liability Survey, conducted by the Society for Human Resource Management and the law firm of Jackson Lewis, more than half of the responding organizations had been named as a defendant in at least one employment-related lawsuit.

Those numbers mirror statistics released by the EEOC, which received 15,618 charges alleging sexual harassment in 1998 - almost double the number received in 1991.

The message is clear: Companies can no longer afford to wait until an employee files a charge to confront the problem of harassment in the workplace. Proactive steps, including effective employee and supervisor training, must be taken to stop harassment before it occurs.

Provide the Right Training

Providing anti-harassment training won't do your organization much good unless it's the right kind of training. When courts and the EEOC examine your training programs, they are likely to look for certain components.

Whether you're auditing your company's current sexual harassment training efforts, designing training for the first time or planning to purchase training services from an outside vendor, you must emphasize these critical components in an anti-harassment training program. Here is a quick look at the elements that your training program should include to pass legal muster with the EEOC and the courts.

Who should be trained? In the past, some companies may have avoided training rank-and-file employee because they feared that employees who were educated about harassment would be more likely to file complaints. Other companies may have excluded lower-level employees from training - and offered it solely to supervisors - to save money. However, the Supreme Court has made it clear that neither rationale is acceptable.

Companies must train both their supervisors and employees. The training offered to employees and supervisors should have similar content; however, supervisors should be given additional training that relates specifically to their duties and responsibilities under the law.

The items listed below should be included in training offered to both employees and supervisors. Additional information on supervisor-specific training follows later in this article.

How often should training take place? Employees and supervisors should receive anti-harassment training when they are hired. They should also be retrained periodically - at least annually. Training should be mandatory.

In addition, companies should consider offering additional training if a complaint is filed. The very existence of a complaint notifies an employer that its zero-tolerance policy has been breached.

What are the training objectives? The goal of anti-harassment training is to create a sense of accountability on the part of both supervisors and employees that they share responsibility for creating a harassment-free environment.

Training offered to employees and supervisors should:

* Advise employees that the company will not tolerate harassment or retaliation for reporting sexual or other forms of harassment.