Article by Colleen C. Karpinsky and Charla Bizios Stevens
"I don't tolerate gender discrimination in my company. I treat every employee equally and would promote a qualified woman just as soon as I would promote a qualified man."
30-SECOND SUMMARY: Every employee should be trained on appropriate workplace behavior. This training should be repeated periodically and should be administered in an interactive, group setting. Web-based training has many limitations and should not be a substitute for in-person communication. As part of the training, make sure employees know what behavior is expected of them, and that racial slurs, ethnic jokes and unwelcome touching will not be tolerated. Ensure that all employees are informed of where and how to complain about inappropriate workplace behavior, and remind them that everyone has an obligation to report illegal or inappropriate behavior.
"No one has ever complained to me about harassment or bullying in this company. We don't need training; everyone is happy here.
"Why would I do harassment training in my company? Won't that just teach my employees how to sue me?"
I asked them, and they said everything is fine." "It's going to cost HOW MUCH to train my supervisors and leads? And they are going to be off the manufacturing floor for HOW LONG? I can't afford that!"
Four different business executives in varying industries and company sizes made these statements. Each of these businesses found themselves in legal trouble due to the actions of middle managers and supervisors who never received comprehensive workplace training. Would training have made a difference? The answer is probably yes in each of these cases, and it is likely that frontline managers take actions every day that expose employers to potential liability. For a number of reasons, training is an excellent way to reduce risk.
When litigation ensues, a business needs to be able, at a minimum, to show that it has adopted policies against discrimination and retaliation, and that it has in place a clear and effective process for reporting and investigating complaints. Most companies have at least these measures in place. They hang the mandatory posters in conspicuous places and have sexual harassment, discrimination and retaliation policies in their employee handbooks, along with a protocol for reporting allegations. Is that enough? Hundreds of state, federal and United States Supreme Court cases and decades of EEOC guidance say it is not.
A review of recent statistics from the EEOC demonstrates increases in enforcement efforts by federal regulators and in the number of filed discrimination charges. In fiscal year 2012, which ended on Sept. 30, 2012, almost 100,000 private sector claims were filed. Areas that saw increases included retaliation, disability, sex and equal pay. Retaliation claims under all statutes (37,836) again topped the list of claims followed by race (33,512), sex (30,356) and disability (26,379).
In order to manage risk and to reduce liability, it is critical to make sure that all workers, supervisors, managers and senior management, in particular, receive training designed to educate them on their rights and responsibilities as employees. Perhaps more important, training helps to create and maintain a workplace where employees are treated fairly. This no doubt leads to improved morale, better production, less distraction, and the ability to recruit and retain the best talent. What more could leadership of the 21st century workplace ask?
The alternative leads to distracted and unhappy employees and managers at all levels. Rather than focusing on hiring new talent and providing services to current employees, human resources (HR) will be conducting workplace investigations into allegations of harassment, and executives will be answering questions at depositions. These types of activities have a big impact, draining HR's budget and resources and negatively affecting employee morale. In a market where culture has proved to be a competitive advantage in attracting and retaining the best and the brightest, taking the wrong approach to managing this risk could have major implications to the growth or sustainability of any business.
What does training look like?
Everyone should be trained on what is and is not appropriate workplace behavior. This includes a review of the most basic rules against harassment, discrimination and retaliation. This training should be repeated periodically and should be live, in a group setting, with an opportunity for questions and interaction among participants and with the trainer. Web-based or video training might be a stopgap for new employees, but it is no substitute for a comprehensive training module that engages all employee levels in a discussion about company culture and expectations. See more on this below, where we discuss one unique approach to this type of training to further promote a great company culture.
Managers should understand how the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) intersect, as well as the rights of their employees. A company is not protected from liability simply because HR understands and knows how to implement these laws. Supervisors need to know when these laws are implicated and when matters need to be referred to HR. Consider a case from the Central District of Illinois where the EEOC was successful in winning significant damages for an employee with a disability claiming that the employer discriminated against him by forcing him to perform work that was outside of his medical restrictions and causing an exacerbation of his medical problems. In that case, it was the employee's direct supervisor who took the action that resulted in the claim by pressuring him to perform tasks his physician recommended against.
Managers must be aware of and understand a company's policy on hiring, and how to properly interview and screen job applicants, and assess qualifications. The EEOC recently filed suit against a national retail auto parts company chain alleging that the company systematically rejected all female applicants for a variety of positions that were traditionally considered for males. The complaint alleged that there was only one female employee out of 800 in these roles, although a review of the existing employment applications showed many females with objectively better qualifications than the men who were hired. Was this apparent discrimination the result of a top-down policy against hiring women, or were individual store managers responsible for perpetuating longstanding stereotypes?
There is no question that a supervisor who does not know and understand basic employment laws — from wage and hour and discrimination to whistleblower and retaliation — can lead his company down the path to litigation. The Supreme Court stated unequivocally in 1998 that employers are liable under Title VII for the actions of their agents, and cases which have followed have emphasized that point repeatedly and expanded that to liability under other workplace laws.
But he's only a foreman? What harm can he do?
In Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), the Court held that an employer is vicariously liable under Title VII for severe or pervasive harassment of an employee by a supervisor. Liability exists regardless of whether the employer is aware of the discrimination. A company is strictly liable for the actions of a supervisor that result in a "tangible employment action." Such actions include hiring, firing, failing to promote, discipline, demotion, or effecting significant changes in working conditions or benefits. Companies can also be held liable for harassment by a supervisor when a tangible employment action does not result after the supervisor has created a hostile work environment and the employer is unable to establish an affirmative defense. An employer establishes such a defense by showing: 1) that it exercised reasonable care to prevent and promptly correct any harassing behavior; or 2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the company. Reasonable care has been held to include training.
Even if the alleged harasser is only a co-employee and not a supervisor, the company may be held liable if it was negligent in allowing the conduct. If, for example, an employer failed to respond appropriately to a claim of harassment by a co-worker, liability might result.
More recent cases have expanded the scope of actions for which companies might be held liable. For example, in the case of Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011), the Supreme Court held under the so-called "cat's paw" theory that employers could be held liable for discrimination by employees who played no part in the ultimate employment decision but influenced the decision in some way. Staub sued his employer under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), alleging that his local supervisors who were demonstrably hostile to his military obligations influenced the vice president of HR to terminate his employment. There was no evidence that the VP had any discriminatory animus toward Staub, but the allegation was that the hostile supervisors manufactured allegations about Staub. The VP did not independently corroborate these allegations before deciding to terminate. Clearly, the message of this case is that decision-makers should avoid rubberstamping the recommendations of line supervisors; employers should also keep in mind that training those supervisors about Staub's rights under USERRA and the impact of disregarding them might have saved Proctor Hospital from facing the litigation in the first place.
And then there's retaliation
In the case Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006), the Supreme Court held that actions taken against an employee asserting rights under Title VII amount to unlawful retaliation if the employer's action "could well dissuade a reasonable worker from making or supporting a charge of discrimination." An adverse action need not be termination, refusal to hire or denial of promotion to be unlawful retaliation. An action could constitute unlawful retaliation if the "adverse treatment ... is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." Examples, according to the EEOC, include threats, unjustified negative evaluations, unjustified negative references or increased surveillance. For Sheila White, that adverse action was reassignment to a less desirable job that was still within her job description.
As most employers are aware, the individuals who are most likely to engage in the type of behavior that could constitute retaliation are immediate supervisors or co-workers. A higher level manager makes a decision about an employee's future with the company based on her performance record documented through evaluations conducted by her immediate supervisor. Co-workers suspect that an employee has complained of a hostile work environment in a department, and suddenly, that employee finds he gets no assistance or information on projects he has been assigned. This causes him to be late in completing assignments, ultimately losing the confidence of his managers. A poorly trained supervisor with a retaliatory motive can subject a business to significant liability. In evaluating an employee with discrimination or retaliation in mind, a manager is the voice of the company, and liability may result.
In more recent years, the Supreme Court has expanded the scope of individuals protected against retaliation. In 2009, in Crawford v. Metropolitan Government of Nashville and Davidson County, the Court extended the anti-retaliation provision of Title VII to employees who disclose harassing or discriminatory conduct when answering questions during an employer's internal investigation, even though those individuals had not brought claims themselves. The 2010 case of Thompson v. North American Stainless further extended the protection to third parties. In this case, protection was given to the fiancé of the employee who complained of discrimination, on the theory that adverse action taken against individuals in a "zone of interests" with an employee might well dissuade any employee from availing himself of his right to complain.
The prudent employer will want to do the following:
- Make certain that all managers and supervisors are aware of what protections employees have and how they should go about managing employees within the limitations of the law.
- Be certain that employees know what behavior is expected of them, and that racial slurs, ethnic jokes and unwelcome touching will not be tolerated.
- Ensure that all employees are informed of where and how to complain about inappropriate workplace behavior. Give them alternatives for reporting. If they are not comfortable speaking with a supervisor, they should be able to go to human resources, a hotline or a company executive with their concerns. An appropriate investigation and remedial action needs to be taken if the complaint is founded.
- Remind employees that everyone has an obligation to report illegal or inappropriate behavior and that anyone who steps forward will be protected from retaliation.
- Act swiftly and decisively to weed out discrimination, harassment and other illegal behavior, and treat retaliation as seriously as you would treat harassment.
Back to the cases at the beginning of this article
Employer Number One, over a number of years, expressed continued concern that conducting comprehensive harassment training would lead employees to become overly sensitive to the behavior of co-workers and to file frivolous claims against the company. What the employer learned during the course of an internal investigation of an allegation of employee theft was that inappropriate behavior was running rampant in the company with no one stepping forward to complain because of the concern that the company would do nothing. The company learned that it had lost several employees due to harassment not only by co-workers but also by customers.
An executive at Employer Two received an anonymous note suggesting that the company was a terrible place to work with rampant offensive behavior. She brought the complaint to the attention of the company's CEO who chose not to engage an independent investigator. Instead, the CEO asked employees whether they thought the allegation was true. Of course, all who were asked responded in the negative. Later, a resigned employee publicly criticized the company, especially the CEO, to whom he attributed some of the most troubling behavior.
Employer Three voiced some of the most typical concerns about workplace training: that it is expensive and logistically difficult to arrange. When a charge of discrimination was filed against the employer, the company could not avail itself of the affirmative defenses available under Farragher and Ellerth. There had been no training and no information disseminated to employees about how to go about reporting discrimination. When the employee filed, the employer was unable to argue that she had failed to avail herself of remedies available to her through the employer, or that it had made reasonable and prudent efforts to weed out illegal behavior. What the employer should have realized is that the training would have paid for itself one hundred times over given the cost of defense before the EEOC.
Employer Number Four is the owner of a relatively small business who had no intention of discriminating against anyone. However, he spent most of his time at the corporate office and was rarely in the field where employees interacted almost exclusively with their direct supervisors. These untrained supervisors were alleged to have had an overwhelming preference for male workers and to have made decisions concerning work assignments based on gender. Upper management relied on the information from these supervisors in making pay and promotion decisions. When supervisors discriminated, the owner had no way of knowing. Even when they didn't discriminate, they did such a terrible job documenting performance that there was a lack of credible evidence to support the company's decisions.
Can training be used to support great workplace culture?
Absolutely. Using cookie-cutter training videos deprives employers of a fantastic opportunity to engage with their employee base and reinforce a great workplace culture. For example, at Dyn, a New Hampshire-based company with an award-winning culture built on trust, passion and persistence — exemplified by the rock climbing wall, hidden scotch room, and putting greens and kegs in the kitchen — the training provided is called "Keep Dyn Awesome." While the training would meet all standards set forth in this article and found in applicable regulations and case law, the training was certainly adapted to fit Dyn's unique culture. In fact, tailoring training has created additional benefits in that it has given employees an easy avenue to provide feedback if/when a co-worker makes an inappropriate comment. Instead of an official report to HR (which is known as the Talent Team), employees can be heard reminding coworkers in a more informal way to "Keep Dyn Awesome."
This has been an approach that protects the company, while at the same time, reinforcing the message that all employees take part in promoting a harassment/discrimination free workplace environment. By placing the focus on "Keep Dyn Awesome," employees understand that remaining harassment/discrimination-free is part of the overall goal of keeping the company a great place to work. This approach addresses the concerns that the employers discussed above raised. The harassment/discrimination training is important to Dyn because it supports the overall culture they aim to promote on a daily basis, which continues to allow the company to attract and retain a diverse group of talented professionals.
Not only do clear policies, comprehensive training, a meaningful procedure for reporting complaints, impartial investigation and appropriate remedial action serve as a business's best defense against claims and lawsuits by employees, they can also serve as excellent vehicles for promoting a healthy work environment and culture.
Originally published in ACC Docket (Jan/Feb 2014).
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