Consider the optimism of sexual and other workplace harassment prevention training: Assuming your organization is obeying child labor laws, employees in the classroom are over 18 years of age. That means they’ve been functioning on the planet for at least 18 years. Do you really think 2 hours of harassment prevention training is going to overcome 18 years of toilet training? Your employees’ thoughts, feelings and behaviors are well-entrenched. Prompting behavior change is hard at best (How are you doing on losing those 5 pounds?); behavior change linked to fundamental personal values is beyond complex.
And yet. If you don’t hold harassment prevention training, in the event of litigation, you have exposed a legal vulnerability. Juries ask: Was the organization simply careless or merely uncaring? Neither alternative is pretty.
You’re at a fork in the road: Do you do Check-the-Box training – the bare minimum you can do without looking careless or uncaring? (If that’s your strategy, save time and stop reading now). If, however, you understand there’s an amazing opportunity whenever you put people in a room together to have the whole exceed the sum of the parts, read on. Here are eight important thoughts about conducting culture-enhancing harassment prevention training.
One: Keep in mind that even if your organization is doing the training for all the right reasons – to reinforce the elements of a fair and inclusive workplace – you can still be sued and you can safely say, the training provided will be picked apart. The trainer may be deposed or become a witness – will their demeanor and knowledge base help or hurt the organization’s professionalism? Your attendance records will be scrutinized – did everyone attend? Were the classes small enough so that people unselfconsciously could ask a question? Is your policy legally compliant and clear? This discussion isn’t about preventing litigation – it’s about winning in the ugly event you’re sued.
Two: Insure you have a mandate from your leadership team to conduct rigorous training. Here’s a good way to test the leadership’s appetite for the training – is there a program for the senior leadership to attend or do they get a pass? Is someone(s) at a senior level present to kick off each session so that a message is delivered about the seriousness of the organization’s expectations? (If the answer is no, it’s Check-the-Box training since that’s the unspoken reality).
Three: Examine and if necessary, update your discrimination/harassment prevention, retaliation policies. Be explicit that the chain of command need not be followed when reporting. Because legally, once any member of management is on notice there’s a problem, the organization is on notice, state the legal standard: All supervisors are mandatory reporters.
Then consider the disciplinary implications versus the early warning possibilities by designating all employees as mandatory reporters (“employees must report instances of harassment …” versus “employees should report instances of harassment …”).
Emphasize that instances of retaliation will be taken as seriously – if not more so – than problems of discrimination or harassment.
And while this one may seem counter-intuitive, have your policy cover more than just the legal basis for harassment – otherwise, when you discipline or terminate employees for violating the policy, you’re also admitting that the organization violated the law. So, in addition to covering harassment “based upon any protected class status under federal, state or local law,” add in that “conduct which is subjectively and objectively hostile or offensive, of a severe or pervasive nature” is also covered by the policy.
Four: Customize the delivery of the curriculum to your employee population. That means, the legally-accurate training program also needs to be relevant across a broad spectrum of business settings. When presenting who can create a Hostile Work Environment, use language related to your business, for example, Patients versus Customers versus Clients. When positioning scenarios, capture your work environment, for example, call it the Shop Floor versus the Examining Room versus the Lab. Use relevant terminology so that it’s clear, this training is aimed at YOU.
Five: You don’t have to be a lawyer to present the law but you do have to understand it. From a cost, consistency, convenience and credibility standpoint, organizations should have someone – not a necessarily a lawyer – available on staff to do this training. Should you bring in a lawyer when you need to train your senior leadership or a sensitive population? Sure. (We have families to feed, too). But since this kind of training should be performed regularly and believably, invest in teaching someone – HR or the Business Owner or a Line Manager – how to deliver culture-enhancing messages. (See more about SyN’s T-3 process at the end of the blog.)
Six: Consider all the training media available and combine them to suit your needs. Classroom training is the most memorable because when you’re talking about engaging with others… you should be engaging with others. Webinars and online delivery provide a lower cost, consistency, convenience of delivery but also deliver a bad message: This isn’t important; all you need to do is just click through this stuff until you reach the intelligence-insulting quiz at the end. By the way, if there isn’t live Q&A with webinars or online programs, in the event of litigation, you can be attacked: The learner had important questions which weren’t answered.
Webinars and online training with live Q&A are great as a supplement to classroom training – you have a new hire who needs the training when there’s no classroom training scheduled. You present classroom training every other year and online or webinars during the off years. Classroom training blended with other media – that’s the modern approach.
Seven: Take attendance like you mean it. Although I always hand out a copy of the organization’s policy when training, I don’t ask people to sign and return it – who needs the administrivia of ensuring you received every signed copy back? Instead, use one attendance sheet for each class, and along with all documents distributed during the training, save them in a folder.
Don’t reward the jerk who intentionally fails to attend training by doing nothing about it or simply have them go through the webinar or online class – require them to do more, not less. (I personally like requiring them to research and articulate in writing how discriminatory discharge is an exception to at-will employment. But that would just be me).
Eight: What happens in the classroom doesn’t stay in the classroom. Often, I turn to a client after a class and name their problem employee. “Yes! You’re amazing! How did you know?” they wonder. “Gee,” I respond, “The tipoff was when the jerk asked whether the protected classes are skewed to one-legged, pregnant, native Americans who are Wiccans.” In a public setting, when discussing a serious and sensitive topic, the employee who pushes the boundaries is noteworthy. Don’t ignore the message they’re working hard to deliver: I’m an accident looking for a place to happen.
One of my favorite cases involves a company, Lucky Stores (you’ll appreciate the irony in a moment) that conducted harassment prevention training during which the trainer invited participants to share stories about how they had been harassed at work. When Lucky Stores was sued and all of the classroom stories were told to the jury, it was a chilling reminder: There is no attorney-client privilege in the classroom. Unlucky Stores. Everything said by a jerk in a classroom is unforgettable – and bound to be repeated. Address it appropriately and quickly.
When an organization is sued, the contents and the delivery of the harassment prevention training program is examined under a microscope. Don’t count on being lucky – use a legally-accurate curriculum like the one designed by Speakers you Need (SyN) professionals with employment law expertise. This course is tailorable to your organization’s needs, able to be delivered as often as needed with unlimited numbers of participants, and at a cost that’s reflective of the importance of getting it right — the first time.
Jodie-Beth Galos, Esq., SHRM-SCP
Jodie-Beth is a graduate of Barnard College, Columbia University and the Boston University School of Law. In addition to being licensed to practice law in New York, Jodie-Beth holds the Society of Human Resource Management’s (SHRM) highest certification: SHRM-SCP. Before opening her own public speaking and consulting practice, Jodie-Beth Galos worked in large organizations: Attorney at Jackson, Lewis; Director of Employee Relations at Saks Fifth Avenue; Vice President at United HealthCare; and Senior Vice President at Smith Barney (acquired by Morgan Stanley) — guiding top management in building a pipeline of employee talent.