Jennifer T. Williams, member of Cozen O’Connnor in Miami.

Employers have long maintained written anti-harassment and anti-discrimination policies and have also utilized workplace training both to inform employees about those policies and to arm employees with the parameters of acceptable versus unacceptable workplace behavior. The more traditional workplace training also tends to focus on “illegal” conduct as well as how to report issues of harassment and discrimination. These training methods were born out of a duo of U.S. Supreme Court decisions from 20 years ago: Faragher v. City of Boca Raton and Ellerth v. Burlington Industries. On the same day in 1998, the Supreme Court’s decisions in these two workplace harassment cases have come to be known as the “Faragher-Ellerth Defense” and have formed the cornerstone of workplace training programs. Essentially, the Supreme Court ruled that employers could have a defense to a claim of sexual harassment where: the employer exercised reasonable care to prevent and promptly correct harassment; and the employee unreasonably failed to take advantage of those corrective opportunities provided by the employer. Employers across the country, therefore, instituted both written anti-harassment policies and began conducting workplace training on those policies.

It is no secret that the workplace landscape has shifted dramatically over the last year with the groundswell of support and awareness generated by the #MeToo and #TimesUp movements. These two movements have highlighted the ways in which traditional workplace training may not be properly addressing employee concerns. For example, the Equal Employment Opportunity Commission has reported that traffic to its own website has increased 400 percent since the inception of #MeToo. As a result, the commission has instituted a new training and outreach program as well as an online portal for employees to submit complaints. Employers continue to await finalization of the commission’s 2017 proposed guidance on issues of workplace harassment and professionalism.

As a result, employers increasingly are facing responsibility for taking action where the conduct in question may not rise to the level of illegal but, instead, amounts to a lapse in professional judgment. Employers are now faced with making necessary organizational decisions for conduct that goes beyond the traditional boss/subordinate paradigm and may not even involve the workplace itself.

One thing we know is that the traditional methods of workplace diversity, harassment, and professionalism training are no longer effective in addressing these new concerns. Despite employer efforts, workplace harassment remains largely underreported. In fact, an EEOC task force also has reported that nearly 70 percent of employees never complain internally and over 80 percent never file a charge of discrimination with the commission. In this new legal and social landscape, traditional anti-harassment training likely will not be effective for increasing harassment reporting rates or improving the organizational culture. Employers, instead, should be focused on the following:

  • Training should be personalized to the organization’s culture and values. A live, interactive trainer can engage employees and stimulate questions from the group in a far more valuable way than a training video or webinar. Employees can get distracted and lose focus on the training materials if they presented by video. Consider asking employees beforehand what topics or issues they want addressed and make those issues a training focal point.
  • Training should not be hyper-focused on avoiding legal liability. The focus should be on unacceptable conduct that won’t be tolerated rather than stopping merely “illegal” conduct.
  • For this reason, real world scenarios are a key component of effective workplace training. The gray areas of employee business trips, happy hours, and client dinners are especially problematic. Employees should understand both that they are expected to conduct themselves professionally and what the consequences will be for violating the organization’s standards.
  • It is critical that any effective training program directly address unintended backlash and retaliation. For example, a common response among male supervisors is to limit contact with female employees altogether so as to avoid being accused of improper conduct. Regardless of gender, mentoring is a key component to both employee development and effective succession planning. Supervisors should be encouraged to mentor and involve all employees on their team and should understand the legal and cultural repercussions for failing to be inclusive.
  • Instruct both managers and nonmanagers how to sensitively handle a complaint of harassment. Describe the process in simple terms and walk employees through appropriate ways to respond to both formal and informal complaints. Reminding employees of their own reporting options will assist in bringing unacceptable conduct to human resources and top-level management.
  • By the same token, remind employees of their rights and responsibilities when faced with unprofessional conduct at work. All too often, a relatively minor issue among co-workers will escalate unnecessarily because an employee may not understand how the organization will respond. Encourage employees to come forward and resolve these issues internally and provide the appropriate environment to do so.

Finally, training cannot be conducted in a vacuum and employers should not solely rely on annual training to maintain appropriate workplace conduct. Consider monthly or quarterly roundtables where employees can gather and discuss issues that may have arisen either as a result of or despite training. Implicit bias, inclusion and diversity initiatives are all related to the conduct which so often falls under the harassment umbrella. Employees should understand that the organization’s commitment to a respectful, professional environment goes beyond infrequent training sessions.

Jennifer Williams is a labor and employment attorney with Cozen O’Connor’s Miami office where she focuses on representing management in all facets of labor and employment law. She represents employers in labor and employment litigation before federal and state courts as well as administrative agencies, including the Equal Employment Opportunity Commission and the Department of Labor.