Can harassment training do more harm than good? Not if you read this.
Can harassment training do more harm than good?
This may seem a silly question. Everyone in HR or employment law knows harassment training is essential, right? Well, we may know this, but employers still express concerns that harassment training may do more harm than good by encouraging “frivolous” claims.
I happen to agree that there is a risk of such an effect if training is carelessly and thoughtlessly done. I also believe the benefit of proper training greatly outweighs such risk.
One key insight gained from the training skeptics is that the training audience is not composed solely of potential harassers, who must be made aware of company expectations regarding proper conduct — and the potentially dire consequences for themselves and the company of improper conduct.
No, the audience is more complex and multifaceted. It also includes many who are potential harassment victims or targets, as well as possibly some employees who may seek to use harassment allegations to further their own agendas, such as getting rid of an unpopular coworker or supervisor.
What’s more, these are not necessarily different people who can be given separate training tailored to their situation. Anyone may be a harasser or harassee. The same person may even be both.
So properly balancing the message to accomplish the necessary objectives for each part of the audience is one of the key difficulties in selecting a training consultant, ready-made video, or computer-interactive training package, or preparing to create and conduct your own training.
Sometimes I cringe when I see video vignettes like those Michael recently referred you to, fearing that the proper message — that the conduct portrayed (e.g., bear hugs) is inappropriate in the workplace — will be misperceived as a message that the conduct is grounds for a lucrative lawsuit. (I am not in any way passing judgment on the particular products Michael referred to; I have not spent enough time reviewing them; perhaps I will in the future and will offer my specific opinions at that time. The couple of vignettes I saw were certainly well done and great food for thought and discussion.)
We need to keep a focus on our training goals, which I suggest include the following:
Being able to show good faith compliance efforts in order to avoid punitive damages under Kolstadt.
Being able to show reasonable efforts to prevent and correct harassment, for the Faragher-Ellerth affirmative defense, which may require more than merely instituting and circulating a nice policy.
Discouraging conduct which may lead to harassment claims.
Encouraging internal complaints. This one sounds strange to some, but internal complaints are vastly preferable to EEOC charges and lawsuits. And efforts to encourage complaints will help with the Faragher-Ellerth affirmative defense in showing the unreasonableness of plaintiffs who do not make proper and timely complaints.
Discouraging EEOC charges and lawsuits. This is where much commercially prepared training material falls short, IMHO.
Educating employees and supervisors about harassment law, bearing in mind that we are not trying to create lawyers, but only to achieve the other objectives above.
My core recommendations are these:
Instruction in legal principles should be focused on only two points: 1) how serious the potential liability issues are as a threat to the company’s success and profitability; and 2) how hard it really is to prove a case of harassment.
The remainder of training should not discuss legalities, but only what is and is not permitted under company policy and why or why not.
Conduct that may not be unlawful can still create undue risk, burden and expense. If it may be offensive and serves no business purpose, it’s not permitted, and the company will not apply a legal standard but a practical one that deliberately sets the bar lower.
Specific situations and vignettes may be discussed in as much detail and variety as time and attention spans permit. But always with a reminder that while the conduct violates policy and the perpetrator will therefore face consequences, the employee will not have a valid legal claim unless various other legal requirements are met — perhaps the most significant of which are an executed quid pro quo, knowing inaction by the company, or retaliation, all of which the company pledges it will not tolerate or permit.
Ah, George! The kind of harassment training I was referring to was for supervisors and managers, so that they know how to address problems that occur in the workplace.
I was NOT referring to training for employees so they know what their rights are (I’ll call this EMPLOYEE TRAINING). That kind of training should be carefully designed around the anti-harassment policy created by the company.
Could a company’s EMPLOYEE training cause a rise in charges? Sure, but that is like saying “don’t drive a car, because people die in accidents!” Create a policy, provide training to supervisors and managers so they know how to enforce the policy, and let employees know what their rights (and responsibilities are)! Deal with the potential problems directly and enforce the policy!
Ah, Michael ! Trying to suck me into a debate again. Unfortunately, I agree with everything you say (except perhaps the driving analogy is a bit lame).
Supervisors, managers, and even HR do constitute a distinct audience that should probably be trained separately.
They still comprise a multifaceted audience as I describe (i.e., may include harassers, harassees, and complainers), but significantly deeper understanding of the law is warranted. Not because I think they’re smarter and thus will understand it better, but because it will help them understand their special role in both creating and avoiding liability.
The quiz you posted includes examples of points I personally would not raise with employees, but would definitely cover with supervisors. See my comments on that post.