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Turn on the television and it quickly becomes apparent that the term “sexual harassment” has permeated our culture’s vernacular. Partly in response to sexual harassment’s notoriety, and perhaps also in response to highly publicized sexual harassment verdicts, shrewd employers have begun conducting sexual harassment training to an extreme degree. However, many employers who have championed this training have failed to expand their focus to other discrimination areas or to other areas of the employment relationship. Oddly, the goals of training — protecting oneself from liability and preventing unlawful behavior — have not been extended to issues beyond sexual harassment. Although the parallels between sexual harassment and other forms of harassment may be lost on employers, the courts have not missed them. The U.S. Supreme Court has issued three decisions that emphasize the need for employers to take preventive steps to avoid Title VII liability and punitive damages. In Burlington Industries Inc v. Ellerth (1998) and Faragher v. City of Boca Raton (1998), the Court held in part that an employer is liable for a supervisor’s actionable harassment of a subordinate even where no tangible employment action has occurred, unless the employer can establish an affirmative defense. The affirmative defense consists of two necessary elements: 1. the employer exercised reasonable care to prevent and promptly correct any harassment; and 2. the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm. In Kolstad v. Am. Dental Ass’n (1999), the court held that punitive damages can be awarded under Title VII when the employer has acted “with malice or reckless indifference” to federally protected rights. The court stated that an employer would not be liable for punitive damages when discriminatory decisions by managerial agents were made contrary to the employer’s “good faith efforts” to comply with federal anti-discrimination laws. Although Ellerth and Faragher dealt with issues of sexual harassment, courts and the Equal Employment Opportunity Commission (EEOC) have reasoned that the affirmative defense applies to harassment by supervisors because of race, color, sex (whether or not sexual in nature), religion, national origin, age or disability. For example, the 8th U.S. Circuit Court of Appeals in Breeding v. Arthur J. Gallagher and Co. (1999) and Wallin v. Minnesota Dep’t of Corrections (1998) held that the affirmative defense applies to cases dealing with age and disability harassment. Like Ellerth and Faragher, Kolstad is not limited to cases of sexual harassment, but sets a new standard for awarding punitive damages under all Title VII cases. Significantly, these decisions change the legal environment by implicitly compelling employers to create and implement policies to prevent, deter and rectify complaints of discrimination and harassment against any protected group. TRAINING COURSES One result of these decisions is that employers need to train their workforce to become well versed in such policies. For example, under the Ellerth/Faragher affirmative defense, an employer generally is required to establish, disseminate and enforce an anti-discrimination/ harassment policy. However, the EEOC observes in its Enforcement Guidance, entitled “Vicarious Employer Liability for Unlawful Harassment by Supervisors,” that even the best policy and complaint procedure will not satisfy the affirmative defense if the employer fails to implement its policy effectively. As such, the EEOC emphasizes that “if feasible, the employer should provide training to all employees to ensure they understand their rights and responsibilities.” Also, several courts have relied on an employer’s training program to find that the employer exercised “reasonable care” to prevent harassment, meeting the first prong of the affirmative defense and thereby avoiding liability. For example, the 5th U.S. Circuit Court of Appeals in Casiano v. AT&T Corp. (2000) held that an employer exercised reasonable care where the employer had a detailed written anti-harassment policy that was reviewed with the plaintiff at the time of hire and during the course of the plaintiff’s employment. In Kolstad, the Supreme Court indicated that while an anti-discrimination policy could prevent an employer from being held liable for punitive damages, simply drafting an anti-discrimination/harassment policy does not automatically bar the imposition of punitive damages. In EEOC v. Wal-Mart (1999), the 10th U.S. Circuit Court of Appeals held that “the extent to which an employer has adopted anti-discrimination policies and educated its employees about the requirements of [Title VII] is important in deciding whether it is insulated from vicarious punitive liability.” Reiterating the Supreme Court’s view that having a written policy against discrimination may not be enough, the court stated that “Wal-Mart’s assertion of a generalized policy of equality and respect for the individual does not demonstrate an implemented good faith policy of educating employees.” Last year in Romano v. U-Haul Int’l, a 1st U.S. Circuit Court of Appeals case in which the plaintiff was terminated because of her sex, the court held that to insulate itself from punitive damages, a defendant must show that efforts were made to implement its anti-discrimination policy through education of its employees and active enforcement of its mandate. Finding that a punitive damages award against the employer was appropriate, the court noted that there was no evidence indicating that the company had “an active mechanism for renewing employees’ awareness of the policies through either specific education programs or periodic redissemination or revision of their written materials.” Furthermore, there was no testimony by the employer’s witnesses that indicated that supervisors were trained to prevent discrimination from occurring, the court said. BERMUDA TRIANGLE While the importance of training cannot be disputed, employers must remember to expand their training programs to issues beyond sexual harassment. This is not a monumental undertaking. Most sexual harassment training programs would simply need to stress that the employer’s policy covers harassment and discrimination based on protected characteristics other than sex. In addition, training programs should provide examples to demonstrate how harassment or discrimination could be based on characteristics such as an employee’s religion or race. Employers also must be careful to articulate that reporting requirements, complaint procedures and retaliation prohibitions are not solely limited to sexual harassment complaints. Training also should cover the various nuances involved in other types of complaints such as freedom of speech in the context of religion, the limits of a “disability” under the Americans with Disabilities Act (ADA), and the like. The 5th Circuit case of Walker v. Thompson (2000) illustrates the importance of expanded training and education of employees on other forms of harassment. According to the opinion in Walker, two African-American employees sued their employer, alleging race discrimination and retaliation. The 5th Circuit overturned summary judgment for the employer, in part, based on the employer’s failure to meet the first prong of the Ellerth/Faragher affirmative defense. While the employer had an EEOC policy statement against discrimination in its handbook, it had failed to institute a complaint procedure specifically addressing racial harassment, the opinion noted. Instead, the complaint procedure instructed employees who believed they had been subjected to sexual harassment to notify management. The court noted that the president of the company even testified that there were no specific policies to follow if a race discrimination complaint against an office manager was received. Of course, training should not be limited to educating a workforce about Title VII issues. From training supervisors on positive employee relations to retain a satisfied workforce, to conducting workplace investigations properly, and managing difficult employees, training of employees and supervisors will go a long way in preventing costly litigation, liability and punitive damages. One further area that invites training — primarily of line managers and Human Resources personnel — is a program dealing with the interaction between state workers’ compensation laws, the Family and Medical Leave Act and the ADA. Often referred to as the “Bermuda Triangle,” these laws, while designed for different purposes, may provide leave entitlements and job protections that must be examined in a coordinated fashion to ensure compliance with the laws. Invariably, employees have struggled with their obligations and responsibilities under a myriad of leave laws with issues as diverse as jurisdictional concerns, paperwork obligations, how to seek medical opinions, and the effect these laws have on employers’ short-term and long-term disability programs. NEW FOCUS With a new focus on training, employers must be careful to implement quality and effective training programs. In Cadena v.The Pacesetter Corp. (2000), the 10th U.S. Circuit Court of Appeals refused to overturn a $300,000 sexual harassment verdict. The court questioned the adequacy of the employer’s training efforts because the female manager who was responsible for the sexual harassment training testified that a male supervisor would not be engaging in sexual harassment “if he either exposed his genitalia to a female subordinate or grabbed her breasts, so long as he apologized after the incident.” Often the monetary value of a suit will hinge on the effectiveness of an employer’s preventive policies. There has been a new emphasis during discovery by attorneys to question employers as to how much money is spent on training, the expertise of the trainers, the curriculum, and employee response to the training. Therefore, it is not only prudent for employers to expand their training programs to cover areas other than sexual harassment, but it is also prudent to develop high-caliber training programs to educate employees effectively and reduce the risk of liability. Improving employee training and expanding it beyond the boundaries of sexual harassment is clearly an important, necessary step for employers to take.

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