Making Molehills Out Of Mountains: Avoiding The $1 Million Harassment Claim
Michael G. Trachtman
Powell Trachtman Logan Carrle & Lombardo, P.C.
MEA General Counsel
Sooner or later, almost all companies will face claims by employees who assert that they were unlawfully harassed. There are many reasons for this, among them the fact that the legal basis for harassment claims have expanded (especially at the state level), and the political climate has led to a definitive spike in harassment claims based on nationality and religion. In some companies, these claims lead to six, even seven-figure judgments; in other companies, the typical outcomes are much more favorable. There’s a reason for this disparity, and the failure to understand that reason can decimate a bottom line.
Death By Cross-Examination
Consider this scenario… An employee files a harassment claim, and you (the director of HR, the department head, perhaps the CEO) are called to testify by the employee’s attorney.
The attorney begins by asking you if you care about worker safety. Yes, you answer. He asks if you have written safety procedures. Yes, you do. He asks if, in addition, you train workers on the proper use of machinery and materials in order to avoid workplace injuries. Yes, of course, you answer. And that’s because you understand that it takes training, not just words in a manual, to make sure that important workplace policies are understood and respected, right? Yes, training is important, you admit.
He then asks if you think it’s important to protect workers from unlawful harassment. Of course, you tell him. He asks if you would agree that unlawful harassment can cause significant damage to an employee – humiliation, loss of advancement opportunities, even the loss of the job itself. That can happen, you have to admit. So, the attorney asks, what did you do to prevent unlawful harassment in your workplace? Well, we have a strict no harassment policy in our employee manual, you explain. That’s it, he asks, just words on paper? You’re starting to see where this is heading.
The attorney moves in for the kill. You’ve told us, he says, that you know that training, not just words on paper, is the key to implementing important policies that protect workers, right? Yes, you did say that. You’ve told us that you know how damaging harassment can be to a worker, right? Yes, that’s what you said. So, tell us about the harassment prevention training you implemented in your workplace.
You hem. You haw. Come on, he prods. Explain to the jury how you can say you really gave two hoots about preventing workplace harassment and, at the same time, the only thing you did was put some anti-harassment words on paper, without any training of any kind. You know you’re trapped. We’re all waiting, he says, looking at the jury. Was it because you couldn’t afford to spend a couple of thousand dollars on training to protect your employees – could you have afforded that? Yes, you admit. Then we need to get to the bottom of this — since you claim to care so much about the well-being of your employees, tell us all what you did to protect my client from the harassment she suffered.
You have no way out. There’s nothing your attorney can do. The jury gets very angry.
The Crucial Importance of Good Faith Efforts
This scenario is repeated every day in courtrooms across the country, not only in harassment claims, but also in cases involving discrimination, retaliation, ADA issues, FMLA issues, and the entire panoply of employment law vulnerabilities. The very expensive lesson is this: if it appears that you made no genuine effort to protect your employees, you will get hammered; if it appears that, in good faith, you did all you could be reasonably expected to do, a judge or jury will understand, and you will have minimized the risk of incurring much more than a slap on the wrist.
But how do you show your best efforts and good faith?
Almost always, the first step is training. Judges, juries and, even, the EEOC and the DOL know that an employer cannot control the conduct of all employees all the time, but if you implement a meaningful training program that instructs employees how they are to behave whether or not a supervisor is in the area, you will have demonstrated that there is little to be served by punishing you. (The training must then be coupled with a consistent, lawful enforcement program, documenting that you truly take your policies seriously, and we will deal with that in a future article.)
How Do You Do It – How Do You Turn a Mountain into a Molehill?
This only works, of course, if you implement a proper training program – a superficial training program will make plain that you knew that training was important, but you did not care enough to get it right. You won’t even be able to plead ignorance.
But what constitutes a proper training program? The answer to that question just got much easier: the EEOC has recently published a proposed policy that sets forth the EEOC’s view on the appropriate criteria for harassment training (and the standards will apply to just about any employment-related training program). The EEOC’s policy reflects a common-sense, tried-and-true approach that can be applied with a modicum of care, planning and professionalism.
Here is the recipe — the key prerequisites, as highlighted by the EEOC, to a meaningful training program that can help employers avoid or, at least, minimize the ruinous impact of employment-related claims.
- The training must be championed by senior leadership. If senior leadership attends, that sends a signal that they think the training is important and, therefore, so must everyone else. Otherwise, not so much.
- The training must be repeated and reinforced regularly. It is important to conduct annual training if possible but, certainly, you should train no less than every other year. And, very important, executives and managers must themselves model and enforce the principals included in the training.
- The training must be provided to employees at every level and location, in all applicable languages. Obviously, it won’t work unless all employees receive the training in a form they can understand.
- The training must be tailored to the specific workplace and workforce. Canned training programs are classic examples of what it means to just go through the motions. There is no one-size-fits-all.
- The training must be conducted by qualified, live, interactive trainers or, if live training is not feasible, it must be designed to include active engagement by participants. A talking head on a video is not training.
- The training program must be routinely evaluated by participants and revised accordingly. Obvious enough…
As a practical reality, training of this type is as mandatory as OSHA compliance, as evidenced by the increasing number of monumental litigation judgments against employers who turn a blind eye to the positive effects training can have on the workplace.
Let us know if we can help.
Michael G. Trachtman is MEA’s general counsel and the President of Powell Trachtman Logan Carrle & Lombardo P.C., a 30+ attorney King of Prussia-based law firm that has represented businesses and business people for over twenty-five years. He can be contacted at firstname.lastname@example.org. See www.powelltrachtman.com for more information.