In 2018, there will likely be an uptick in harassment claims, and there will need to be more human resources support or external legal support to handle them, which presents a cost issue for companies. Many companies have policies in place, but training typically is focused on helping employees identify harassment and report it (and avoiding lawsuits). It does not focus on preventing it and encouraging people not to engage in that type of behavior. What is the real purpose of harassment training? Employers will need to be reviewing policies and training to make sure they are both protecting from liability and preventing the behavior.
Carrie Hoffman, co-chair of the labor and employment group at Gardere, sat down with Inside Counsel to discuss this issue. She represents major employers nationwide in all areas of labor and employment law across a range of industries, including retail, and is highly regarded for her experience with wage and hour issues, as well as employment discrimination and retaliation claims.
“This year, we can expect an uptick as more and more celebrities are accused and/or accuse others of harassment,” she explained. “The main reason that women cite for not coming forward is fear of retaliation. As women believe that there is safety in numbers, they may feel more secure in coming forward. This is much like the publicity following the Anita Hill/Clarence Thomas hearings. Women will feel empowered as powerful men in visible positions are losing their jobs. What we have not seen is what is happening to the women who accused these powerful men.”
Internal HR teams may not be able to investigate complaints either because they may have limited experience or because the alleged harasser is a person in their reporting structure. Obviously, it is hard to be impartial and make decisions when you report to the person accused. In those instances, HR will need to engage outside counsel.
Right now, many companies are re-examining their policies and training. In fact, when the Supreme Court first recognized sexual harassment as a cause of action under Title VII in Meritor Savings Bank v. Vinson and refined the liability standards in Ellerth and Faragher, companies focused on making employees aware of policies prohibiting harassment and how to complain about harassment. Now, according to Hoffman, harassment training will need to change to do more to instruct employees about what type of conduct is considered improper and the consequences for improper conduct. Under current case law, employers can avoid liability in certain circumstances if they have appropriate policies and publishing and enforcing those policies.
“The purpose behind anti-harassment policies is to make employees aware that such behavior is not condoned and the consequences for violating the policy,” she said. “Despite the very clear edict in anti-harassment policies, unfortunately no policy can prohibit all types of behavior, just like no law can do so. Employers can refocus training on reminding employees about the consequences of violating such policies.”
These days, policies and training should focus on real-world examples of inappropriate conduct and demonstrating how the company will review and evaluate such policies. In addition, another way to ensure that this is done properly is to conduct separate training for management to reiterate the consequences of violating the policy.
According to Hoffman, the best way to avoid liability for harassment is to have no such behavior in the workplace. Therefore the best way to avoid liability is to prevent behavior. She added, “Training should be live, versus watching a video, and interactive in an environment in which asking questions is encouraged. Training should also be tailored to the specific work environment–white collar, call center, factory, etc., meaning that one-size training may not fit all.”
Amanda G. Ciccatelli is a Freelance Journalist for Corporate Counsel and InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more.