Sexual harassment is nothing new, but the issue has gained unprecedented urgency for employment attorneys and their clients since the Harvey Weinstein story broke last fall.
Responsible employers are eager to do a better job addressing harassment so they don’t have their own #MeToo moment, said Esther G. Lander, partner with Akin Gump Strauss Hauer & Feld LLP in Washington during a Bloomberg Law HR Outlook 2018 Webinar (available for free as an on-demand program). “What that’s translated into is more live training than I’ve ever done in my entire career.”
This heightened focus on prevention provides an opportunity for labor and employment practitioners to enhance their training offerings, and it should also serve as a reminder for law firms to make sure their own EEO-related policies and procedures are in order (see Bloomberg Law guidance on preventing an EEO violation).
Fresh Approach With Real Examples
A fresh approach to sexual harassment through live training offers employers the opportunity to start a conversation around the issue, equip employees to address inappropriate conduct, and foster a culture of civility and respect in the workplace.
And one of the great things about bringing employees into a classroom setting is that “you can’t shrink a live training on your computer and keep working and ignore it,” Lander said.
For the training to be successful, it must involve more than reciting company policies and legal doctrines. While standards and definitions for terms such as “quid pro quo” and “hostile environment” are important to cover, an overly legalistic approach runs the risk of becoming a snoozefest or, worse yet, giving people the impression that less severe conduct is tolerable as long as it doesn’t break the law.
A big advantage of live sessions is that they allow people to ask questions they might not otherwise ask. Lander said actual examples work extremely well for engaging the audience and getting them to discuss whether certain behaviors are improper or cross the line.
“We like to pull them from real cases or use video clips from uncomfortable moments on TV,” she said. “This gets people talking about these issues and trying to get a better understanding of where that line is.”
Leadership Support and HR Presence
For training to be effective, “there has to be support from the top, and it needs to be framed in terms of valuing employees and protecting them,” said Jonathan A. Segal, a partner with Duane Morris LLP in Philadelphia, in a Bloomberg Law report on preventing sexual harassment.
Outside trainers can only be effective if it’s clear company leadership is sponsoring them, Segal said in the report. He recalled a “very powerful” statement from a CEO who said, “Nothing is more important than ensuring our employees have a workplace free from harassing behavior.” He added that members of the C-suite need to attend the training, “not just say it’s important and then go back to work.”
Keep in mind, however, that the presence of management in a session for rank-and-file workers can sometimes make things awkward, David Barron, an attorney with Cozen O’Connor in Houston, notes in the Bloomberg Law report. He distinguished supervisors and managers from members of the human resources department, who should have direct involvement with anti-harassment programs.
“We recommend having an HR presence in each and every training session, and for HR to meaningfully participate. An outside vendor can never speak as clearly to the company’s values and reporting procedures as an internal HR representative. Moreover, creating a one-on-one connection between HR and employees can foster confidence in making complaints internally,” Barron said.
Complaint Procedures and Bystander Intervention
When covering internal complaint procedures, employees need to know how and to whom they can report incidents of harassment.
Managers need added training that emphasizes the greater degree of responsibility they have in the process, Michael J. Studenka, a partner in the Newport Beach, Calif., office of Newmeyer & Dillion LLP, said in the Bloomberg Law report. “Point out they are the eyes and ears of the company. Here’s what you need to do, and how you can hurt the company if you fumble it.”
One of the newer elements covered in sexual harassment training is bystander intervention, according to Amy Polefrone, president and CEO of Ellicott City, Md.-based consultancy HR Strategy Group LLC. The goal is to help managers and employees learn how to intervene if they see somebody being sexually harassed. “Sometimes it’s easier to stand up for others than for oneself,” Polefrone noted in the report.
In connection with bystander training, men need to realize they can do more to take some of the burden off women, Mark Lipton, professor of management at New York City’s New School, said in the report. He said sexual harassment training should cover “the increased responsibility of men to call out other guys when they see behavior that potentially crosses the line.”
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Kurt Naasz is an editor with Bloomberg Law.