Employment Relations Training

People Say the Strangest Things

Major pitfalls to effective training include inappropriate comments, stereotypes, and biases expressed during training. A casual remark that may (or may not) seem innocent at the time enough can come back in retrospect to bite an employer. Examples from actual cases include:

• “Women do not want to work late shifts.” Stender v. Lucky Stores, Inc., 803 F. Supp. 259 (N.D. Cal. 1992).
• “Women seem to step down a lot after being promoted.” Id.
• “Does this mean that we can't f*** the help anymore?” Williams v. Spartan Communications, Inc., 2000 WL 331605 (4th Cir. Mar. 20, 2004).

Such inappropriate comments have been used as evidence in hostile work environment and discrimination claims. For instance, a large grocery store chain reportedly paid over $75 million on a class action lawsuit alleging gender discrimination against females in advancement opportunities. To prove discriminatory intent the plaintiffs used the notes that members of management made about comments made during a diversity training session. In the session managers were encouraged to verbally express personal feelings on diversity issues. Stender v. Lucky Stores, Inc., 803 F. Supp. 259 (N.D. Cal. 1992). In Williams v. Spartan Communications, Inc., 210 F.3d 364 (4th Cir. 2000), the court held that a general sales manager's comment after a sexual harassment training session could lead a jury to conclude that the employer's anti-harassment policy was not an effective preventive program.

Serious issues arise if the trainer or members of management make these types of statements during training. To minimize risk, consider the following:

• Add “disclaimer” language such as “for discussion purposes only” to materials provided, especially if case studies are used.
• At the beginning of every training session, create “ground rules” clearly listing appropriate speech and behavior that is expected during the class.
• Address inappropriate statements by communicating that the statement is not appropriate for the workplace and/or does not represent the viewpoint of management. One approach is to address inappropriate comments by stating in response something like, “While we all have our own opinions on these issues, the view that you just expressed is not the position of this company or its managers,” or “That is a perfect example of something not to say under our policies.”
• Do not hesitate to remove unmanageable employees from a training class environment.

Offering Incorrect or Limited Information

It is also imperative that the person conducting the training have an extensive understanding of the relevant organizational policies and law. For example, it could be argued that the training was ineffective if the trainer provided incorrect answers to questions. Lacking knowledge of policies could likewise lead to discrimination or harassment claims. For instance, a lawsuit was filed after a facilitator in a management training session stated that managers should honor a patrons' request of a different clerk after seeing that the clerk waiting on them was African American. This was not the policy of the employer and elicited a complaint of race discrimination. For this reason it is important that the presenter receive adequate training prior to conducting the training sessions. It is also prudent for the trainer to feel comfortable saying, “That's an excellent question. Let me get back with you on that,” if he or she does not know the answer to a question posed during training. The trainer should then obtain contact information for the questioner, and follow up with him or her after obtaining an answer from Human Resources or Legal.

Legal Opinions Provided By Trainer

It may come as no surprise that supposedly “hypothetical” questions posed during a training session by an attendee may be a real life scenario that has occurred or is occurring in your workplace. In responding to these questions, trainers need to avoid drawing legal conclusions such as “that would be sexual harassment or a hostile work environment.” Suggested alternative responses follow:

• If a student offers a hypothetical that is clearly a policy violation: “The sort of conduct you described to me in your hypothetical is prohibited under our harassment policy. If that conduct occurred, the person who was the subject of that or anyone else who saw it would need to report the conduct immediately.”
• If the hypothetical does not offer sufficient information or is ambiguous: “I can tell you if the Company was aware of those sorts of allegations it would definitely investigate. I would need a lot more information from everyone alleged to be involved to tell you if that behavior was prohibited under our harassment policy.”

Not All Participants Understand the Training

Ensuring that all of the target audience understands the training is crucial. It may be difficult to argue the third-prong of the employer's hostile work environment affirmative defense (that the employee unreasonably failed to report conduct or otherwise avoid harm) if the complainant did not understand the employer's policies due to communication barriers. Further, it could be argued that the training was ineffective if a significant number of employees did not understand the training due to communication barriers. Issues may also arise under the Americans with Disabilities Act (ADA)if an employee requests a reasonable accommodation (ie, a hearing-impaired employee asks for a sign language interpreter to be present during an anti-harassment training session) or the employer otherwise knows that a reasonable accommodation is necessary to accommodate a known disability, yet the employer refuses to accommodate the employee. The key to handling these issues is to consider the following question in planning your training sessions: Are there any employees who would not be able to understand any verbal or written data presented during the training sessions? If so, it is important for the employer to make additional arrangements to eliminate these barriers.

Suggestions to ensure participants understand training include:

• Providing live or video training in a language other than English (and allowing employees to voluntarily elect which class or classes they would like to attend).
• Ensuring the training fits the audience by utilizing easy to understand words for those new to America or who have English as a second language.
• Providing a sign-language interpreter if necessary.
• Providing materials in large print or Braille, etc.

Follow-Up

Often, after the training session, employees may share personal experiences with the trainer that they have encountered at the organization. It is important to realize that this sort of informal complaint may very well be considered notice to the employer of a complaint under the body of case law interpreting harassment claims. Correspondingly, it is important that if the complaint raises issues of possible unlawful harassment, the trainer immediately pass this information on to the organization's Human Resources' or Legal personnel responsible for handling the same.

One other issue arises if the training is accompanied by some sort of post-test assessment of the attendees' grasp of the subject matter, and an attendee fails to meet the minimum level of competency. This is often a component of Web-based training programs. Imagine that the very same employee who “failed” the post-test later is accused of creating a hostile work environment. The “post-test” then would become key evidence tending to disprove that management took adequate steps to prevent the behavior, and might also be used to show that management had reason to believe that this person might engage in this behavior and did nothing to prevent it. If the post-test teaching method is used, it is important that all attendees failing to meet minimum competency standards be required to undergo a make up training session.

Reasonable Accommodation Based on Religious Beliefs

Imagine that your organization has implemented a successful mandatory diversity training program for the last several months. One day, you receive a voice-mail from an employee who tells you that he or she has heard about the program, and does not want to attend because he or she fears the topics discussed will be contrary to his or her religious beliefs. Suddenly, you have a potential Title VII request for a reasonable accommodation based on religious beliefs. What do you do?

Several reported cases similar to this have occurred in recent years. For example, in one case, the Texas Court of Appeals reversed a summary judgment for a Houston car dealership on claims by an automotive sales trainee who alleged that the dealership refused to hire her after she refused to participate in a mandatory training class that conflicted with her Christian beliefs. Bobbie Grant v. Joe Myers Toyota, Inc. 11 S.W.3d 419 (Tex. App. 2000). Specifically, the employee objected to the requirement that trainees read and memorize passages from a textbook used in the training class that incorporated Biblical figures in a textbook about how to become “the greatest salesperson in the world.” The trainee alleged that the dealership told her that she would have to read the book if she wanted to take the class, and must take the class to be hired since she had no previous sales experience. Similarly, in April 2004, a Colorado federal court awarded a plaintiff over $147,000 based on its finding that the plaintiff's ex-employer failed to accommodate the plaintiff's religious beliefs by firing him when he refused to sign the employer's diversity policy that required him to value the behavior and beliefs of others. (See April 5, 2004 press release, The Rutherford Institute, at www.rutherford.org.) The plaintiff objected to signing the policy on the grounds that he could not “value” homosexuality and religious beliefs contrary to his own Christian beliefs.

The best approach in handling the issues such as these that may arise in the context of diversity or anti-harassment training programs is to consult with legal counsel prior to proceeding. Possible suggestions when an employee objects to the content of training on religious grounds include providing the employee with a personal session to discuss the policy and its reporting mechanisms in lieu of requiring the employee to attend the group training session. Also, to minimize the risk of an objection, direct policy language at behavior and not values or belief systems.

In the end, the key to a successful training program is the careful consideration of how to handle sometimes difficult, sometimes predictable training situations as they arise prior to implementing a training program and to come up with a plan for dealing with them.

Anti-harassment and diversity training can be a very effective tool in preventing claims of workplace discrimination and minimizing risk. It is essential, however, to be aware of the snares along the way: poorly executed training may be as good as no training at all, or worse. Properly executed, anti-harassment and diversity training holds out some hope for employers as a means to avoid the adage, all too familiar in the human resource community, that “no good deed goes unpunished.”

Training becomes a key piece of proof of the first prong of an employer's affirmative defense to liability in defending a hostile work environment claim. That is, an employer will want to be able to demonstrate that it exercised reasonable care to prevent harassment. ( See Faragher v. City of Boca Raton , 118 S. Ct. 2275 (1998). Keep in mind that in the case of alleged supervisory harassment it will be the employer's burden to prove that it undertook steps to prevent the harassment. To this end, be sure to retain all dated sign-in sheets setting forth the names of the employees in attendance, the materials provided, all relevant policies, biographical data on the trainer, and any written acknowledgement forms. The same evidence is also relevant to the third prong of the affirmative defense — that the complaining party failed to take advantage of safeguards and prevent harm — if it can be shown that the complaining party was provided training on the employer's policies regarding harassment and how to report concerns of the same. In this context the documentary data listed would become a critical part of the third-prong of the employer's defense. This is also why it is important that attendance is mandatory, not voluntary.

It is equally important that the training is “adequate.” In one case, an employer was unable to prove that it had taken reasonable care to prevent harassment in defense of a lawsuit, despite having policies prohibiting harassment and training on the same. See Wal-Mart Stores, Inc. v. Davis , 979 S.W.2d 30 (Tex. App. 1998) (pet. denied). In this case, the district manager could only recall attending one harassment training class “a couple years ago” and discussing the subject at one corporate meeting. The alleged harasser recalled only “15 minutes” of training on the company's sexual harassment policies and procedures. In addition there was evidence that no company employee was responsible for training the workforce on the relevant policies. Based on all of the above, the court concluded that the first prong of the affirmative defense had not been satisfied. While training is difficult to schedule and even more cumbersome to execute, it is imperative that the appropriate amount of time and energy be placed on creating a course that employees will learn from and remember during their daily activities.

People Say the Strangest Things

Major pitfalls to effective training include inappropriate comments, stereotypes, and biases expressed during training. A casual remark that may (or may not) seem innocent at the time enough can come back in retrospect to bite an employer. Examples from actual cases include:

• “Women do not want to work late shifts.” Stender v. Lucky Stores, Inc. , 803 F. Supp. 259 (N.D. Cal. 1992).
• “Women seem to step down a lot after being promoted.” Id.
• “Does this mean that we can't f*** the help anymore?” Williams v. Spartan Communications, Inc., 2000 WL 331605 (4th Cir. Mar. 20, 2004).

Such inappropriate comments have been used as evidence in hostile work environment and discrimination claims. For instance, a large grocery store chain reportedly paid over $75 million on a class action lawsuit alleging gender discrimination against females in advancement opportunities. To prove discriminatory intent the plaintiffs used the notes that members of management made about comments made during a diversity training session. In the session managers were encouraged to verbally express personal feelings on diversity issues. Stender v. Lucky Stores, Inc. , 803 F. Supp. 259 (N.D. Cal. 1992). In Williams v. Spartan Communications, Inc. , 210 F.3d 364 (4th Cir. 2000), the court held that a general sales manager's comment after a sexual harassment training session could lead a jury to conclude that the employer's anti-harassment policy was not an effective preventive program.

Serious issues arise if the trainer or members of management make these types of statements during training. To minimize risk, consider the following:

• Add “disclaimer” language such as “for discussion purposes only” to materials provided, especially if case studies are used.
• At the beginning of every training session, create “ground rules” clearly listing appropriate speech and behavior that is expected during the class.
• Address inappropriate statements by communicating that the statement is not appropriate for the workplace and/or does not represent the viewpoint of management. One approach is to address inappropriate comments by stating in response something like, “While we all have our own opinions on these issues, the view that you just expressed is not the position of this company or its managers,” or “That is a perfect example of something not to say under our policies.”
• Do not hesitate to remove unmanageable employees from a training class environment.

Offering Incorrect or Limited Information

It is also imperative that the person conducting the training have an extensive understanding of the relevant organizational policies and law. For example, it could be argued that the training was ineffective if the trainer provided incorrect answers to questions. Lacking knowledge of policies could likewise lead to discrimination or harassment claims. For instance, a lawsuit was filed after a facilitator in a management training session stated that managers should honor a patrons' request of a different clerk after seeing that the clerk waiting on them was African American. This was not the policy of the employer and elicited a complaint of race discrimination. For this reason it is important that the presenter receive adequate training prior to conducting the training sessions. It is also prudent for the trainer to feel comfortable saying, “That's an excellent question. Let me get back with you on that,” if he or she does not know the answer to a question posed during training. The trainer should then obtain contact information for the questioner, and follow up with him or her after obtaining an answer from Human Resources or Legal.

Legal Opinions Provided By Trainer

It may come as no surprise that supposedly “hypothetical” questions posed during a training session by an attendee may be a real life scenario that has occurred or is occurring in your workplace. In responding to these questions, trainers need to avoid drawing legal conclusions such as “that would be sexual harassment or a hostile work environment.” Suggested alternative responses follow:

• If a student offers a hypothetical that is clearly a policy violation: “The sort of conduct you described to me in your hypothetical is prohibited under our harassment policy. If that conduct occurred, the person who was the subject of that or anyone else who saw it would need to report the conduct immediately.”
• If the hypothetical does not offer sufficient information or is ambiguous: “I can tell you if the Company was aware of those sorts of allegations it would definitely investigate. I would need a lot more information from everyone alleged to be involved to tell you if that behavior was prohibited under our harassment policy.”

Not All Participants Understand the Training

Ensuring that all of the target audience understands the training is crucial. It may be difficult to argue the third-prong of the employer's hostile work environment affirmative defense (that the employee unreasonably failed to report conduct or otherwise avoid harm) if the complainant did not understand the employer's policies due to communication barriers. Further, it could be argued that the training was ineffective if a significant number of employees did not understand the training due to communication barriers. Issues may also arise under the Americans with Disabilities Act (ADA)if an employee requests a reasonable accommodation (ie, a hearing-impaired employee asks for a sign language interpreter to be present during an anti-harassment training session) or the employer otherwise knows that a reasonable accommodation is necessary to accommodate a known disability, yet the employer refuses to accommodate the employee. The key to handling these issues is to consider the following question in planning your training sessions: Are there any employees who would not be able to understand any verbal or written data presented during the training sessions? If so, it is important for the employer to make additional arrangements to eliminate these barriers.

Suggestions to ensure participants understand training include:

• Providing live or video training in a language other than English (and allowing employees to voluntarily elect which class or classes they would like to attend).
• Ensuring the training fits the audience by utilizing easy to understand words for those new to America or who have English as a second language.
• Providing a sign-language interpreter if necessary.
• Providing materials in large print or Braille, etc.

Follow-Up

Often, after the training session, employees may share personal experiences with the trainer that they have encountered at the organization. It is important to realize that this sort of informal complaint may very well be considered notice to the employer of a complaint under the body of case law interpreting harassment claims. Correspondingly, it is important that if the complaint raises issues of possible unlawful harassment, the trainer immediately pass this information on to the organization's Human Resources' or Legal personnel responsible for handling the same.

One other issue arises if the training is accompanied by some sort of post-test assessment of the attendees' grasp of the subject matter, and an attendee fails to meet the minimum level of competency. This is often a component of Web-based training programs. Imagine that the very same employee who “failed” the post-test later is accused of creating a hostile work environment. The “post-test” then would become key evidence tending to disprove that management took adequate steps to prevent the behavior, and might also be used to show that management had reason to believe that this person might engage in this behavior and did nothing to prevent it. If the post-test teaching method is used, it is important that all attendees failing to meet minimum competency standards be required to undergo a make up training session.

Reasonable Accommodation Based on Religious Beliefs

Imagine that your organization has implemented a successful mandatory diversity training program for the last several months. One day, you receive a voice-mail from an employee who tells you that he or she has heard about the program, and does not want to attend because he or she fears the topics discussed will be contrary to his or her religious beliefs. Suddenly, you have a potential Title VII request for a reasonable accommodation based on religious beliefs. What do you do?

Several reported cases similar to this have occurred in recent years. For example, in one case, the Texas Court of Appeals reversed a summary judgment for a Houston car dealership on claims by an automotive sales trainee who alleged that the dealership refused to hire her after she refused to participate in a mandatory training class that conflicted with her Christian beliefs. Bobbie Grant v. Joe Myers Toyota, Inc. 11 S.W.3d 419 (Tex. App. 2000). Specifically, the employee objected to the requirement that trainees read and memorize passages from a textbook used in the training class that incorporated Biblical figures in a textbook about how to become “the greatest salesperson in the world.” The trainee alleged that the dealership told her that she would have to read the book if she wanted to take the class, and must take the class to be hired since she had no previous sales experience. Similarly, in April 2004, a Colorado federal court awarded a plaintiff over $147,000 based on its finding that the plaintiff's ex-employer failed to accommodate the plaintiff's religious beliefs by firing him when he refused to sign the employer's diversity policy that required him to value the behavior and beliefs of others. (See April 5, 2004 press release, The Rutherford Institute, at www.rutherford.org.) The plaintiff objected to signing the policy on the grounds that he could not “value” homosexuality and religious beliefs contrary to his own Christian beliefs.

The best approach in handling the issues such as these that may arise in the context of diversity or anti-harassment training programs is to consult with legal counsel prior to proceeding. Possible suggestions when an employee objects to the content of training on religious grounds include providing the employee with a personal session to discuss the policy and its reporting mechanisms in lieu of requiring the employee to attend the group training session. Also, to minimize the risk of an objection, direct policy language at behavior and not values or belief systems.

In the end, the key to a successful training program is the careful consideration of how to handle sometimes difficult, sometimes predictable training situations as they arise prior to implementing a training program and to come up with a plan for dealing with them.