R-E-S-P-E-C-T in the Workplace
Effective training is critical to limiting legal exposure for workplace harassment.

By Patricia S. Eyres

Workplace harassment claims have remained relatively steady and jury awards have been quite high despite increased attention on prevention. Proper harassment training can help establish a more respectful work environment and provide important legal safeguards.

As a business owner, your commitment to harassment prevention training is as critical to your legal protection as a written policy prohibiting harassment. The reason is simple: the conduct involved occurs in the day-to-day interaction of employees. To effectively and legally handle issues of harassment, business owners, managers, supervisors and HR professionals must know what harassment is, why it’s illegal, what to do about it and what the consequences of failure to properly handle these issues can be.

Prevention Through Training
Harassment can be based on sex, race, religion, age and even disability. It isn’t so much the original behavior that creates the potential for massive liabilities, as many of these behaviors occur in workplaces every day. Rather, it is the way management handles the issue, or fails to deal with a complaint, that subjects the employer to significant legal exposure. The underlying conduct merely triggers the complaint. The employer’s legal responsibility to conduct an immediate investigation and then to take immediate and appropriate corrective action is the focus of many cases today.

While mitigating any possible legal action is important, preventing harassment in the first place should be your primary focus. So, it is important to conduct effective harassment prevention training for managers and supervisors, with the objective being to have a positive effect on their behavior.

One of the major challenges you may face in presenting workplace harassment programs is participant resistance. Many simply don’t want to be there. The best way to gain and retain their attention is to explain the concept of personal liability. Begin with your organiza¬tion’s policy, as well as all of the pertinent laws and regulations. A review of the range of personal conse¬quences for employees can include potential disciplinary actions for violations.

Hostile environment harassment, whether based on sex, race, religion or age, is hard to define and even more difficult to explain. You may find some philosophical resistance to government “regulation” of interpersonal behavior. Trainees often have trouble with the legal definition of sex discrimination in the form of “harassment,” because much of the behavior may, in some issues, be socially acceptable outside the work setting (such as parties and happy hour).

The notion that discrimination must be motivated by malice or other intentional conduct is hard to overcome. Employees often feel threatened by the fact that unintentional behavior (e.g., joking or even “compliments”) can be unlawful discrimination. But, harassment complaints often arise over differing perceptions of the same action.  In sexual harassment cases in particular, issues of gender identity, sexuality and sexual interaction are uniquely personal and emotional, and the differences in reaction are compounded by cultural, spiritual and other life experiences.

What constitutes harassment can be a subjective standard. So, effective training is based on awareness of how one’s words and actions might be perceived by others. And, managers should be trained to take all complaints seriously, even if they don’t consider the actions in question to be harassment.

Conducting Training
Keep in mind that this type of training can be uncomfortable for participants, and many will not want to be there. There may be initial resistance or even hostility. Don’t take this personally. It may even be helpful to talk about people’s reservations at the beginning and build discussion around it.
The training should reinforce participant awareness and provide practical examples for development. The training also should provide for a variety of learning styles by using lecture, group discussion, small group exercises and case studies. Role-play is extremely useful for training. However, avoid putting people on the spot in role-plays. Situations presented are uncomfortable and forcing participants to take an active role can lead to distraction and further resistance. If you are using role-plays, try to identify willing participants in advance.

The skills, knowledge and ability of individuals selected to conduct training should include, at a minimum, thorough knowledge and understanding of applicable legal and administrative standards, familiarity with the employer’s policies, and a perspective of unique company issues (such as prior to existing complaints). This is important to avoid stumbling unintentionally on a fact pattern too close to home. This often causes disruption in the workshop or participant inattention, while they are “speculating” about who is being discussed.

Cautiously approach the decision to train management and non-management employees together. The advantages to training employees of all levels together is that everyone will be reading the same materials, and non-management employees have the benefit of witnessing firsthand that management has knowledge of how to properly handle such matters.

Disadvantages include the risk that managers in the session will not be knowledgeable and will show their ignorance to employees who report to them, or even make comments that can exacerbate an environment that is already hostile. Likewise, employees may be intimidated to ask questions, particularly about incidents they feel management may not have handled appropriately in the past.

Finally, presentation of a successful workplace harassment program requires the ability to avoid confrontation and value judgments about employees’ comments and reactions to the subject area, the effort to deal objectively and compassionately with emotionally distressed individuals in the context of the training, and to answer questions and refer trainees to alternative resources for obtaining further information.

Top-Down Support
Top management must support the training programs and make attendance mandatory for all employees—including themselves. Monitoring complete attendance helps make the content available to everyone, and serves the legal purpose of documenting the employer’s efforts to prevent harassment in its workplace.

Encourage an environment in which harassment is taken seriously, and where employees are not afraid to interact when addressing the issue; whether it is male/female interactions, racial/ethnic sensitivities or differing cultural perspectives. Place emphasis on creating an atmosphere of trust where coworkers are encouraged to communicate openly and with mutual respect.

Training alone will not shield employers from liability if they fail to enforce consistent policies, take improper conduct seriously, properly investigate complaints or take appropriate corrective action, where warranted. It does, however, show a level of commitment to a harassment-free work environment and may mitigate damages in a subsequent lawsuit.

Patricia S. Eyres is an experienced attorney, with more than 18 years defending businesses in the courtroom. She is a full-time professional speaker and author. Her most popular presentation is Leading Within Legal Limits. She can be reached at www.PreventLitigation.com or at 1-800-LIT-MGMT.