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Below are some questions employers can ask themselves to ensure that an organization’s managing-the-law training programs are complete: � WHOM TO TRAIN? All managers who influence employment decisions should receive mandatory managing-the-law training. Training only those people who have final authority to make employment decisions such as hiring and terminations is probably not adequate. Courts have not hesitated under the right facts to find liability for discrimination by lower level supervisors who influence the employment decision. � WHAT LAWS TO COVER? As discussed above, Phillips will likely be applied to all major discrimination laws. Make sure management training programs cover the following: – Title VII – ADEA – ADA – FMLA (which has a penalty provision similar to the ADEA) � WHAT SKILLS TO TEACH? Managers should be trained in making hiring, discipline and termination decisions that comply with EEO laws and that will survive legal challenge. Do managers know what questions they can and cannot ask during a hiring interview? Do managers know how to avoid stereotypes when making employment decisions? Do managers know what factors to consider to ensure that discipline and termination decisions are (and appear) fair? Can managers create documentation that shows the organization’s legitimate business decisions? Managing-the-law programs that fail to teach these skills and others needed throughout the employment lifecycle are not adequate. � WHAT LEVEL OF SKILLS AND KNOWLEDGE NEEDS TO BE TAUGHT? Make sure the level of instruction is appropriate for the audience. For example, front-line managers and supervisors generally do not need to know all the technical aspects of the ADA and FMLA. Yet if these managers fail to spot the early warning signs (and report them to HR), the organization could face liability. Thus, ADA/FMLA training for front-line managers can be a segment of a larger program. HR professionals and more senior managers, in contrast, need more comprehensive training on these subjects. � WILL THE TRAINING PROGRAM STAND UP TO LEGAL SCRUTINY? Courts (and opposing counsel) are frequently scrutinizing training that employers use to try to avoid or limit damages. Cadena v. Pacesetter Corp., 224 F.3d 1203 (10th Cir. 2000) (training that included unsound advice did not show a good-faith attempt to prevent discrimination); Elmasry v. Veith, 2000 U.S. Dist. LEXIS 340 (N.H. 2000) (harassment training that was too brief did not show reasonable efforts to prevent harassment). Employers must ensure that their training programs are designed and delivered by experts in the relevant fields. Proper instructional design techniques must also be followed to ensure that employees truly “get the message.” By implementing a complete and adequate series of managing-the-law training programs, employers can help avoid an “extraordinary mistake” that leads to liability. Doing so will also help avoid many of the workplace problems that lead to litigation. James Webber is a partner and Leigh Ann Tift is an associate in the Seattle office of Littler Mendelson, www.littler.com. Mr. Webber may be reached at [email protected]and Ms. Tift may be reached at [email protected]. This article is designed to provide accurate and informative information and should not be considered legal advice.

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