Perhaps not surprisingly in these unusual (Covid) times, many employers seem to have pushed harassment training down on their priority lists.
Understandably, concerns about determining whether, and how often, employees should physically return to the office along with all of the associated safety issues have taken priority. That said, concluding that harassment training and, specifically, effective harassment training is unnecessary with hybrid workforces would be a mistake.
According to information posted on the EEOC’s website, in “FY 2022, the EEOC received 73,485 charges of workplace discrimination (19% more than in FY 2021), resolved 65,087 charges, and secured over $381.7 million for victims of discrimination in private sector and state and local government workplaces through voluntary resolutions and litigation.” These statistics clearly caution employers to not be complacent when it comes to preventing discrimination and harassment claims.
Effective harassment training actually requires significantly more than conventional wisdom suggests. Many employers and their business advisors believe that harassment training that merely addresses (i) what constitutes unlawful harassment; (ii) an organization’s anti-harassment policy; and (iii) to whom harassment complaints should be directed is sufficient to discharge an organization’s obligations insofar as harassment training is concerned.
I disagree. Certainly, these issues should be an important component of harassment training. However, for the training to be truly effective, it should also include a discussion of the following:
- The costs – personal, financial, reputational and otherwise – to any organization when harassing behavior exists and/or is condoned;
- The relaxed standard for proving unlawful harassment in certain jurisdictions;
- The advantages to an organization – personal, financial, reputational and otherwise – when respect and civility are the order of the day in the workplace;
- A thorough review of the relationship between underlying claims of harassment/ discrimination and retaliation claims;
- How, by and large, legal principles associated with sexual harassment generally apply to harassment based upon other unlawful grounds such as race, religion, disability, and age;
- The risk factors for unlawful harassment;
- The related issues of bullying, diversity, tolerance, sensitivity, and professionalism;
- How and why uncivil, intolerant, insensitive, unprofessional and bullying behavior that may not technically rise to the level of unlawful harassment, often has the same corrosive effects and consequences to an organization as unlawful harassment;
- An affirmation of the organization’s commitment to treat seriously and investigate appropriately all complaints of misbehavior – whether unlawful harassment or otherwise; and
- As appropriate, a review of liability principles (for entities and individuals) associated with harassment claims.
Comprehensive harassment training, preferably “in person,” is part and parcel of a “mindset” adopted by successful organizations committed to a workplace free from harassing, bullying, insensitive and unprofessional behavior. Inspired organizations undertake harassment training (preferably comprehensive training) not only because their attorneys advise them to do so or because it is “good for business.”
They do so, in substantial measure, because it is the right thing to do. To be sure, some harassment training is better than none. However, organizations that believe that abbreviated and cursory harassment training can suffice to “check the box” (i.e., satisfy a real or perceived need to conduct some kind of training) may be penny wise but pound foolish. Increasingly, courts and administrative agencies — and just as importantly — employees, applicants, and customers, expect employers to “walk the talk.”
Effective training that takes a comprehensive and wide angle view of harassment is an excellent way for employers (i) to demonstrate an unending commitment to addressing this extremely important issue that shows no sign of waning any time soon and (ii) to show up differently in a meaningful way.
Marc Engel is an employment attorney committed to proactively helping for profit and nonprofit employers minimize the risk of employment claims. For more information about harassment training, contact Marc at 301-657-0184 or [email protected].