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ANTI-HARASSMENT TRAINING MORE IMPORTANT THAN EVER

By Orley Moskovits Desser & Seth A. Stern

Having a comprehensive anti-harassment policy that affords employees meaningful avenues of redress is a critical step toward preventing sexual and other harassment in the workplace.  But it’s not enough.  It is equally critical to train managers about harassment -- how to prevent it, how to investigate it, and how to address it should harassment take place.  It is also essential to train rank-and-file-employees about harassment.  There are five reasons.

Five Reasons to Train Managers

1. Training can help prevent harassment from occurring.  Rather than leave the topic unaddressed (as some employers mistakenly prefer to do), it is better to get it out in the open.  Doing so can help dispel misconceptions about what harassment is and is not and let all employees know that the employer views harassment as a serious matter that will not be tolerated.
   

    

2. An employer can set a positive tone and enhance employee morale.  Anti-harassment training sends a powerful message to employees that their employer cares about them and the work environment.
   

    

3. An employer can make sure that managers deal appropriately with complaints.  Far too often, untrained managers ignore complaints or respond by accusing employees of encouraging the harassing behavior.  In some cases, untrained managers have retaliated against employees who complain about harassment, turning simple matters into complex and expensive ones.  Do your managers know how to handle an employee’s “request to do nothing” when they report harassment?  If not, they could well mishandle the situation.  Earlier this year, the United States Supreme Court unanimously held that an employee is protected from retaliation when the employee answers questions during an investigation of a co-worker’s discrimination or harassment allegations.  Do your managers know this, and do they know what to do?
   

    

4. Training can put an employer in a better position to defend against harassment claims.  Court decisions underscore the importance of anti-harassment training for managers and for rank-and-file employees not only in terms of prevention, but also in terms of eliminating or reducing employer liability.  Moreover, in a case where liability is found, an employer may be able to reduce the likelihood of a punitive damages award if it has conducted anti-harassment training.  With the ever-escalating costs of litigating harassment claims, and the huge verdicts that often result, training is a relatively small investment that can pay for itself many times over.
   

    

5. Illinois employers must be especially vigilant.  Last month, the Illinois Supreme Court upped the stakes for Illinois employers that fail to act proactively with regard to harassment.  Under federal law, an employer may defend against a claim that a supervisor created a hostile work environment if (1) the employee unreasonably failed to take advantage of preventive or corrective opportunities provided by the employer, or (2) the employer exercised reasonable care to prevent and correct promptly the sexually harassing behavior.  The decision holds that the defense is not available in Illinois at all if the harassment comes from a supervisory employee – even a supervisor who has no authority over the complaining employee.  The case will have significant implications for Illinois employers:  they will be strictly liable for the sexual harassment of an employee by a supervisory employee.  Among other things, the decision makes more imperative than ever the need for employers to educate their managers and employees about how to prevent, investigate, and address harassment in the workplace.
   

    

Workshops

We recommend to our clients that they conduct two separate anti-harassment workshops – one for management/supervisory employees, and the other for the rest of the workforce.  Our management workshop is designed to help key managers better understand harassment, the explosive ramifications of harassment claims, how to prevent harassment, and how to properly investigate harassment claims.  The workshop for employees is designed to teach them what does and does not constitute harassment and to encourage them to use internal channels should a problem arise (rather than seek redress outside their employer).  Both workshops are conducted in “plain English,” are quite interactive, and use scenarios, video examples, and mock investigations (in which attendees play a part) to maintain a high level of interest and participation.

Conclusion
 

A properly crafted anti-harassment policy is critical to preventing harassment.  But sound implementation of the policy is equally essential.  In our experience and that of our clients, the benefits of conducting effective anti-harassment training far outweigh the costs, especially when considered in light of the substantial human, legal, and economic costs of even one harassment case.
 

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