17 Tips for Anti-Harassment Training
A recent government report provides a starting point for retooling anti-harassment training for supervisors.
The recent release of the Equal Employment Opportunity Commission (EEOC) report on sexual harassment shouldn’t be cause for a collective yawn. Rather, the report contains the seeds for great ideas to fight harassment of all stripes, including that based on race, gender, national origin and religion.
EEOC Chair Jenny Yang first announced the creation of a Select Task Force on the Study of Harassment in the Workplace early last year, and her message then was simple: We have made a lot of progress, but the problem persists.
Fast-forward to June, which was the 30th anniversary of the Supreme Court’s recognition that sexual harassment is a form of sex discrimination. After more than a year of study, including numerous public hearings, EEOC commissioners Chai Feldblum and Victoria Lipnic issued their report.
One key aspect of the study is the importance of training supervisors and management. Let’s focus on the following 17 tips for upgrading your training that are based not only on specific recommendations from EEOC commissioners but also on my own advice. (Note: While I served on the task force, I speak for neither the EEOC nor the task force.)
1. Ensure that the training is interactive and facilitated by a qualified trainer. If your employees are passive participants, the training will not achieve its full potential. Ideally, the training should be live. If that is not feasible for cost reasons or because employees are geographically dispersed, you can consider an online alternative, but it should have an interactive component.
2. Confirm that support comes from the highest levels. Without the endorsement of senior leaders, the training likely will be seen as a mere “check-the-box” exercise. Executives should attend the event and ideally provide opening or closing comments. Leaders must make it clear that everyone will be held accountable for complying with the requirements covered in the training.
3. Clarify that the training should be taken seriously. The purpose of this exercise is not simply to sensitize supervisors; it is to help them keep their jobs. Make it clear that the employer, like the courts, holds supervisors to a higher standard than other employees.
4. Emphasize the business risks of engaging in or tolerating harassing behaviors. Such risks include lost productivity, lower employee retention and the employer’s tarnished reputation. Simply put, harassment is bad for business.
5. Provide specific examples of unacceptable behaviors as opposed to making general statements. Examples must be customized so that they resonate in your workplace. Canned training is a waste of everyone’s time.
6. Focus on risk factors that increase the likelihood that harassment will be tolerated. These include a homogenous workforce and workers who are dependent on customers’ tips and may be afraid to speak up. Supervisor training must focus on how these risk factors may increase the potential for harassment so that managers can address problems before they occur.
7. Emphasize what is unacceptable vs. what is illegal. Employers don’t want to suggest that behavior is unlawful when it might not be. For example, in most cases, one comment is not actionable. You also don’t want to imply that unacceptable behavior is OK simply because it is not significant or pervasive enough to violate the law.
8. Describe both severe and subtle examples of harassment. If employers don’t include the less obvious examples, supervisors may define harassing behavior too narrowly. On the other hand, if blatant behaviors are excluded, managers may fail to address what they cannot imagine anyone doing even when it does indeed take place.
9. Address unlawful harassment in all its forms. Harassment can be based on a person’s race, ethnicity or religion. And don’t forget that gender-based harassment, even if it is not sexual in nature, is also against the law.
10. Provide supervisors with guidance on how to respond in the moment. If supervisors aren’t taught what to say from the very moment an employee reports harassment to them, they may say something unwise such as, “That doesn’t sound like Mark.” Make it simple: Supervisors should say, “Thank you for bringing your concerns to my attention. We take them very seriously.”
11. Emphasize that supervisors cannot promise absolute confidentiality. Managers should report all complaints to HR as a matter of course. However, if they aren’t informed of this step in advance, and they agree to an employee’s request to keep a complaint confidential, then they cannot tell anyone, despite the legal and business risks that go with having notice and doing nothing.
12. Train supervisors to respond proactively to unacceptable conduct. Managers who see, hear or otherwise become aware of harassing behavior should follow up, even in the absence of a complaint. To be silent is to condone. This is why the EEOC recommends that so-called bystander training be incorporated into supervisory education efforts. This type of training is based on the premise that witnesses or others who become aware of harassing behavior (bystanders) play a key role in stamping out harassment.
13. Emphasize non-retaliation. Fear of retaliation is the primary reason employees do not raise concerns when they should. Employers must define retaliation as broadly as the law in terms of who is protected (not just complainants) and what is prohibited (not just discipline and discharge). Examples of other prohibited retaliatory actions include changing the amount of work given to employees, shifting the nature of assigned tasks and excluding workers from key meetings. Emphasize that retaliation of any kind against a person who reports or witnesses harassment will be met with immediate and proportionate corrective action.
14. Provide civility training. Even though rude or uncivil behavior is not unlawful unless it relates to a protected group, incivility is the gateway to harassing behavior. Therefore, the EEOC recommends that employers conduct civility training. True, civility training can create problems with the National Labor Relations Board. But for supervisors who are not covered under the National Labor Relations Act (NLRA), such training can be infused not only into anti-harassment training but also performance management training without risk of violating the NLRA, if structured properly.
15. Use humor carefully. Appropriate humor can sometimes ease tension so that participants are more open to the training, but it is very important not to minimize the seriousness of the issue. In my experience, humor is best used to poke fun at those who defend inappropriate behavior: “He really thought that if he called her at home off the clock to share his lustful feelings for her, it was not harassment. Perhaps he should be fired for both harassment and stupidity.”
16. Evaluate and re-evaluate. Elicit specific feedback about what resonated with employees and what they want to know more about. Discuss which behaviors do not qualify as harassment, such as a nondiscriminatory but tough management style.
17. Convey that the solution is not to avoid those who are different from us. Trying to avoid harassment claims by avoiding certain groups of employees altogether may constitute unlawful discrimination. Provide specific examples on how supervisors can engage in mentoring and promote social inclusion within a diverse workforce.
I have previously written about eligibility for time off under the Family Medical Leave Act (FMLA). I have also talked about the Americans with Disabilities Act (too many times to mention here). Many of you may have dealt with each law separately. A number of you may, to your surprise, have found yourselves dealing with both at the same time. FMLA is an employee leave law. ADA is an anti-discrimination law. Can both laws really impact the same set of facts? If so, how? Now for the truly burning questions: Does it matter that both may apply? If so, when and how? That seems like enough questions to get us started this week–and get started we will, after the jump, of course!
(image from hospitalityriskupdate.com)
Suppose your employee has migraines and asks for time off on an intermittent basis. The FMLA regulations specifically provide for this type of leave. What happens if your company is too small to be subject to the FMLA though? Alternatively, what happens if you are subject to FMLA, but the employee already took all twelve weeks of FMLA leave time s/he was entitled to within the last year? Many employers assume that the employee is not entitled to time off and deny the request–and find themselves in a lot of hot water. Why? Even if your company is not subject to the FMLA, or even if the employee is no longer eligible for FMLA leave, your company may be subject to the ADA. So what? The ADA is not an employee leave law is it? Well, theoretically, no, but practically speaking, yes, sometimes. Huh?
Title I of the ADA prohibits discrimination based on disability, record of disability or perception of disability. It also requires employers to provide reasonable accommodations to qualified individuals with disabilities. How would that apply to our example? The ADA/ADAAA defines disability very broadly. Migraines will likely qualify as a “disability”. Now here’s the kicker: Unpaid leave, including intermittent unpaid leave may be a reasonable accommodation under the ADA. So, while your employee may not be eligible to take time off under the FMLA, s/he may be entitled to the very same intermittent leave as a reasonable accommodation under the ADA.
Can a request for FMLA leave also qualify as a reasonable accommodation request? Practically speaking does that matter? Initially it may not. If an employee has a “serious health condition” under the FMLA that is also a “disability” under the ADA and if s/he is otherwise eligible for FMLA leave, then you will most likely need to follow FMLA requirements initially. Why? The FMLA generally provides greater leave protection to employees, and you will want to follow the more restrictive law to protect against consequences of violating both laws. But that may not be the end of the matter. What if your employee exhausts his/her FMLA leave but says s/he still cannot return to work? You may be able to terminate that employee, but maybe, just maybe extended leave will be a reasonable accommodation under the ADA. Whether or not it is, and if so, how much leave you then have to allow depends on the specific circumstances.
Now, let’s add another layer just for fun. Suppose that your employee with migraines has been taking intermittent FMLA leave. You find out that on one of those intermittent leave days, s/he was arrested for DWI, the next day s/he was in jail, and on subsequent “leave days” s/he was attending court appearances. You fire your employee and s/he sues, alleging, in addition to FMLA-related claims, violation of the ADA. S/he argues that you should have simultaneously considered the FMLA request a request for reasonable accommodation under the ADA. Does a FMLA request double as an ADA request for a reasonable accommodation?
While they may fit the criteria for both, in the situation of potential leave abuse, maybe it does not matter. Why not? If an employer can prove that an employee is abusing his/her leave, then s/he wasn’t entitled to leave — or job protection–under either law. This is essentially what happened in a Second Circuit Court of Appeals case under similar facts in Capps v Mondelez Global No. 15-3839, 2017 U.S. App. LEXIS 1593 (Jan. 30, 2017). The Court did confirm that under certain circumstances a request for leave under the FMLA can double as a reasonable accommodation request under the ADA. It also, however, found that: a) the facts did not support a reasonable accommodation case; and b) the employer’s honest belief, even if that belief was incorrect, that the employee had violated its Dishonest Acts Policy was a valid reason for terminating him and a valid defense under the FMLA. This is known as the “honest belief” rule. “Honest belief” is a defense to FMLA claims. What about ADA claims? Theoretically no, but there is another, equally valid defense here: If the employee claims a need for intermittent leave to take care of migraines, and on one of those days off is arrested for drunk driving, and then uses subsequent leave time for court appearances, the intermittent leave is likely not a reasonable accommodation for the purported disability.
What can you do to avoid such a situation? You might start with the following:
- Evaluate all leave requests, allowing for the possibility of either or both the FMLA and the ADA applying;
- Review and update your leave policies;
- If you determine that your employee is not eligible for FMLA leave, engage in the interactive process. Learn how your employee’s medical condition affects his/her ability to perform his/her essential job functions and discuss possible temporary adjustments to the job.
- If at all possible and reasonable, provide temporary adjustments that keep the employee on the job. Remember that under the ADA you need only provide reasonable accommodations –not necessarily the specific accommodation the employee requests. You can provide an alternative that is equally effective in addressing the issue at hand.
- Consult with competent employment counsel. (Did you really expect me not to include this one?)
HAPPY AUTUMN from All of Us at PSI
Sweet-Potato Meringue Pie
The Southern counterpart to pumpkin pie comes topped with a sugary cloud of meringue for extra appeal.
7 hours 15 mins 40 mins 8 Makes one 9-inch pie
Total Time Prep Servings Yield
For the Sweet-Potato Pie
- 2 pounds sweet potatoes
- 1 disk Test-Kitchen Piecrust
- All-purpose flour, for surface
- 2 large eggs, lightly beaten
- 1/2 cup whole milk
- 1/2 cup heavy cream
- 1/3 cup granulated sugar
- 1/4 cup light-brown sugar
- 1/2 teaspoon salt
- 1/2 teaspoon freshly grated nutmeg
- 1 teaspoon pure vanilla extract
For the Meringue
- 3 large egg whites
- Pinch of salt
- 1/4 teaspoon cream of tartar
- 1/2 cup granulated sugar
1. Make the sweet-potato pie: Preheat oven to 425 degrees. Pierce sweet potatoes in a few places with a fork, and bake until very soft, about 1 hour 15 minutes, depending on size of potatoes.
2. Meanwhile, roll out dough into a 12-inch round on a lightly floured surface. Fit into a 9-inch pie plate, and trim edge, leaving a 1/2-inch overhang. Refrigerate until firm, about 1 hour.
3. When sweet potatoes are cool enough to handle, scoop out enough flesh to measure 2 cups (reserve any remaining flesh for another use), and transfer to a food processor. Add eggs, milk, cream, sugars, salt, nutmeg, and vanilla, and process until smooth
4. Reduce oven temperature to 375 degrees. Pour filling into crust. Bake until filling puffs and cracks around edge and pie is just set, 50 to 55 minutes. Let cool completely on a wire rack, about 2 1/2 hours. Pie can be kept at room temperature for 1 day, covered loosely with parchment or foil.
5. Make the meringue: Beat egg whites, salt, and cream of tartar in a bowl with a mixer on low speed until foamy. Raise speed to high, and add granulated sugar in a slow, steady stream. Whisk until stiff, glossy peaks form, about 5 minutes. Spoon meringue on top of pie. Lightly brown meringue in places with a small kitchen torch (or broil about 7 inches from heat source about 45 seconds).
The egg whites in the meringue are not cooked.
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