Employee Training Programs

While it sometimes may not feel like it, there is a whole world happening outside of the four walls of your company.  Outside of those walls, events take place that capture the attention of the public and become a natural topic of discussion.  Take this week for instance, when civil unrest in Baltimore dominated the news cycle and touched on the undoubtedly sensitive issues of policing, class, and race.

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Copyright : Blend Images

They don’t call these events “water cooler moments” for nothing- your employees no doubt discussed the compelling television images they saw with coworkers in the areas where they congregate.  Being realistic, this is not something that any employer will be successful in stopping.  However, a failure to manage the time, place, and manner in which those opinions are expressed may give rise to an employee feeling as if they are being harassed, even if the comments are not directed at them.  This is especially true when issues that touch upon topics like race are involved.  You should take some simple steps to ensure that no employees later allege that they were subjected to a hostile work environment based on the expressed opinion of colleagues.

First, let all your employees know that if they are uncomfortable with the opinions expressed by their colleagues, they can come to management to talk about those feelings.  More often than not, an employee who feels aggrieved by such comments can be assuaged simply by talking to a management employee who will listen to the complaints and speak to offending employee(s).  If your employee handbook does not set forth a mechanism to report such complaints, you have bigger problems than an employee who is unhappy.

Further, ask your employees to confine conversations that touch on sensitive topics to their work station (if they have an office, even better!)  This will allow individuals to still express their opinions and lessen the chance it is overheard by colleagues not receptive to such opinions.

Finally, hold your supervisors and management employees to a higher standard.  Most harassment cases premised on a hostile work environment stem from the conduct and words of supervisors, so provide them with training on what and what not to say in the workplace.

While you have no control over the opinions of your employees, you do have some power to manage the ways in which those opinions are expressed through simple training.  Like so many other issues in employment law, an ounce of prevention is worth a pound of a cure.

37639916_sI just returned from a vacation to France.  Upon my return and hearing where I traveled to, a lot of people wanted to know how the trip was.  They also wanted to know something else — were the French rude?  With the exception of one person who worked at the airline ticket counter who was rude, which I attributed to the fact that she was an airline employee and not that she was French, everyone could not have been nicer to me while I was in France.  This is true despite the fact that my knowledge of French consists of being able to say hello, goodbye, please, thank you and where is the bathroom.  Nonetheless, I found the French people to be willing to help and ignore the fact that I was butchering their language.

It seems that it is a rather common stereotype in the United States that the French, particularly the Parisians, are rude.  My experience was so different that it got me thinking about stereotypes and how pervasive those beliefs can become.  It also got me thinking about how employers must be prepared to combat these stereotypes on a daily basis.  In my experience, most employers who have harassment policies do a good job of setting out what is prohibited sexual harassment, but they may forget to focus their policies and training on other types of harassment and discrimination that may occur based upon other protected classes like national origin.

Good harassment and discrimination policies should make clear that discrimination based upon membership in any protected class as defined by federal, state or local law, will not be tolerated.  Training should also cover more than sexual harassment and refer to discrimination based upon national origin, marital status, race, religion, etc.  This is not only a good idea from an employee relations standpoint but can have important benefits in a litigation.

I have had plaintiffs try to parse language of discrimination policies that focused almost exclusively on sexual harassment to say that they were unaware that discrimination based on another protected class was prohibited.  They have also parsed policy language to say that they thought the complaint procedure only applied to sexual harassment claims.

So, today I have two suggestions for you:  1) review your harassment and discrimination policies to insure that they cover the protected classes in the jurisdictions in which you operate, and 2) plan a trip to France — the food is amazing, the culture and history interesting, and the people are nice — no really, they are nice.

“Oh Wow, You Look So Pretty I Can’t Even Concentrate” was the title of a post we wrote on August 9th, subtitled:  “Sexual Banter Or Sexual Harassment?”

See: https://employmentdiscrimination.foxrothschild.com/2014/08/articles/sexual-harassment-1/oh-wow-you-look-so-petty-i-cant-even-concentrate-mere-banter-or-sexual-harassment/

sexual harassment : office sexual harassment Stock Photo

We decided to survey the attitudes towards “sexual banter” and sexual harassment” in different countries, and began with this article from South Africa.  We received a record number of comments, and wrote further.

We noted that “We just read an article which began ‘Unwelcome groping, or a promise of a better job in return for a kiss, clearly amount to sexual harassment.  But what about comments like ‘Oh wow, you look so pretty, I can’t even concentrate,” or ‘You look sexy today?’”

We asked:  “Is this sexual harassment?  Harmless banter?  The answer is important to HR people, employers and employees.”

The article was from South Africa’s Times Live and, as we reported, echoed a few posts which we did about “sexual banter” some time ago.  We began with a quote from Howard Levitt of the Financial Post, who said that “The line between sexual banter and harassment can sometimes be indistinct, even blurred. But crossing it is costly.”

We then asked “How about when the comment does not rise to even mere banter but is only a casual remark or even simply a workplace compliment?   Are these comments safe or taboo?”

water cooler gossip : Business employees gathered to get a drink of water and gossip. Isolated on white.

We also quoted Leanne Italie, writing for the Associated Press and published in Rocky Mount Telegram, who also asked “Are workplace compliments focused on looks or other personal details like dress ever OK?   Is the alternative a more sterile professional life?   When do such remarks rise to actionable harassment, or become worthy of a friendly rebuff or a trip to human resources?”   She cited to experts who suggest that “tone, context and a pattern of behavior are everything when it comes to unwanted remarks.”

A View From Wales

And on August 31st, we wrote about “A Brouhaha In Wales Over Workplace `Banter,`” regarding an article in WalesOnline which reported on a local story and asked a local Cardiff attorney “when [does] banter go[] too far and become[] discrimination?”

Cardiff attorney Darwin Gray discussed this issue, and advised that “There is no hard and fast rule, and it’s a very fine line between ‘banter’ and discriminatory/potentially unlawful comments. However, generally, if the comments are likely to offend someone, especially where they are linked to a ‘protected characteristic’ (defined in the Equality Act 2010 as things like race, sex, age, disability, religion, sexual orientation, gender reassignment) then they have probably crossed the line.   So basically, the advice is to pause and think about how comments could be perceived by others, especially when putting comments in writing (e.g., emails, texts).

Remember that emails, for example, are permanent and can always be recovered.  It’s important that an employer doesn’t just ignore things as said employer does not want to be seen to be tolerating / encouraging such comments.”

A New Post From New Zealand

A blog post by the New Zealand law firm of Duncan Cotterill is the latest to have caught our eye concerning “the issue of inappropriate conduct in the workplace, and how some behaviour, even unintentionally, can be offensive and unwelcome to others at work.”

Seehttp://www.mondaq.com/article.asp?articleid=356628&email_access=on

“[How can you] tell the difference between harmless joking and banter and unlawful harassment and bullying, asks the author, who then answers “The former is often welcome and can help boost collegiality and culture. The latter can have a devastating effect on the workplace, create significant legal risks for an organisation, not to mention result in significant loss of productivity, plummeting staff morale and high turnover.”

Their takeaway (at least as we read it):  “Chief executives and managers set the tone and the culture and lead from the top in terms of appropriate conduct. If in doubt as to whether particular conduct is appropriate, it is generally best to err on the side of caution. … The important thing to remember is that it is not the intent of the person making the comments or jokes that matters. It is how they are received and perceived by others. That makes harassment very much a subjective issue and can sometimes make it difficult for individuals to understand where the line between appropriate and inappropriate conduct lies.”

One Takeaway

As Welsh attorney Gray said:  “It is advisable for an employer to have an internal policy on equal opportunities and diversity – setting out what is acceptable and unacceptable conduct. That policy should be communicated clearly to all staff so that they are clear of the conduct/behaviour expected of them.”

As we wrote before, “This issue, and all of its many facets, is of great significance if progress is to be made in understanding and curbing workplace harassment.”

 

Last week’s post about blatantly discriminatory job ads in New Zealand elicited a number of comments from folks who could not believe that such ads were actually published.  To remind you, these were some of  the ads:

* Young and vibrant waiting staff wanted

* We’re looking for vibrant salespeople with a young, passionate energy

* If you’re a motivated, talented young marketer

* We’re on the hunt for young, fit and competent carpenters for immediate starts

* Young person willing to learn – mechanic technician

Reader Comments

To those of our readers who were surprised — even shocked — at such ads, other readers provided examples from their own practices or corporate experiences which are truly “surprising.”

Read on.

Louise Walker, a Solicitor in Glasgow, UK:

“Helpful article Richard. If an individual has the skills and qualifications required to carry out a job, then their age should not matter. Employers would be well advised to take care when placing adverts to ensure they are not exposing themselves to a claim for discrimination.”

Ed Skinner, an HR expert in the Cincinnati area:

“Amazing … in this day and age! Might as well open the checkbook for a LARGE settlement.   Human Resources Professionals in the United States are less likely to commit that error!”

David Gabor, a Boston attorney:

“Ed, I wish that were true. I recently had a case in which the interview notes contained comments such as “sexy but married….too bad.” “Not my type. Not blond.” “Too skinny” “Pregnant … no way!!!” “Hot and single”

Guess which one got the job? Shortly thereafter she sued for sex harassment. Small wonder.

Worse … Head of HR was in the interviews with the Director!”

Ed Skinner:

“Wow. Bet those two were dropped into HR from some other discipline. Couldn’t have been trained in HR ! I hope. Makes one wonder doesn’t it.”

David Gabor:

“The training received in HR is superior. Sadly, performance does not always follow. Human nature often rears its ugly head.”

Lisa York Bowman, an attorney in Atlanta:

“I recently had a case where the interview notes written on the back of the application were similar to those described by David, despite the superior training that took place within the company.”

Dana Pearl, an EEO/HR consultant in Chicago:

“A client of mine had to fire their plant manager who had attended two of my training programs over a few years, and one of another contractor, because the guy accepted an employee’s offer to ‘service’ him in his car after work.  She turned around and filed a sexual harassment charge. The manager said it was mutually consensual.

Stupid is as stupid does, and no amount of training is going to make someone behave.

hostile workplace : Angry woman makes face behind person over white

I tell my clients that I can ‘lead the horses to water, but can’t make them drink.’ It’s up to the individuals to make the choice to be professional — or not.”

 

A couple of early comments to our “Zero Tolerance” post earlier this week drew our attention because of the insights shared.  We think that these two comments can be a central point around which an educational discussion/debate can coalesce.

no discrimination : equality equal rights and opportunities for all women man disabled black and white solidarity discrimination of people with disability or physical and mental handicap

Lisa Hutchin, Contractor – Labor Relations in Sacramento, CA:

“I think we can have a zero tolerance policy, but that doesn’t absolve management from the obligation to use some good common sense. This is an area where we have completely gone bonkers. It’s the ‘go to the freezer and get the pizza dough’ mentality.  Without using a reasonable person standard and common sense, zero tolerance policies become the escape for anyone who doesn’t want to have to make a decision (“It says so RIGHT HERE. I don’t have a choice”).

I have seen this problem escalate over the years and have to wonder what we have gotten ourselves into. Whatever happened to mitigation, for example? Managers get a pretty decent paycheck for using their heads and yet they either use the zero tolerance policy as an excuse not to or they’re afraid of the repercussions of standing up for their decisions. Whatever happened to conducting a full and complete investigation before making a decision – as in, use your head?

For example, schools and businesses should have a zero tolerance policy for workplace violence. That doesn’t mean you suspend an eight year old for chewing his pop tart into an “L” shape. Nor does it mean that AutoZone should terminate an employee who ran out to his car, grabbed his firearm and stopped an armed robbery.”

zero tolerance : Zero Tolerance Warning Sign

Lisa Chase, HR futurist in the Minneapolis-St. Paul area:

“What is tolerated within an organization is the problem of the managers and executives. I think the ‘reasonable person’ should become a general guideline. If a reasonable person finds actions, speech, or behavior offensive then it is and must be dealt with. We have proven, I think, over the years since the civil rights era that legislation does not stop discrimination. But each successive generation has become less tolerant of it in themselves and others.

Overt acts must be dealt with. Clear policies regarding harassment and discrimination must be on record. Training must be provided and managers must step up to the challenge when faced with these situations. The only way to eliminate this behavior is to make it intolerable within the organization. Regardless of legislation. Discrimination and harassment isn’t wrong because it is illegal – it is wrong because it is cruel.”

 

 

Last week we reported about the EEOC entering into a consent decree settling a disability suit for $30,000.  The suit was against a Minneapolis-area home health care provider for failing to provide a reasonable accommodation to a housekeeping employee who suffered from fibromyalgia and osteoarthritis — and then firing her.

We stressed a few major points which employers should “take away” from this case:
Train your managers and employees in all aspects of the ADA;
Always engage in an interactive process re seeking a reasonable accommodation for employees with disabilities; and
Do not rely upon stereotypical assumptions about people with disabilities.
One of our readers, Suzanne Benoit, a management consultant in Portland Maine, sent in an interesting comment in which she provided some additional helpful “takeaways” and mantras, such as “focus on performance not assumptions.”
She wrote:
“Great information Richard, thanks for posting it. For me, the bottom line is to focus on what is happening inside the office and relate it all to performance, not assumptions. The article also points out that managers and supervisors have to be trained to refrain from assuming or discussing anything about employees who are performing their duties at an acceptable level.
There is another issue in these situations worth noting, though not at issue in this case. In addition to training management, as the article points out, I find that it also helps if all new employees are oriented initially NOT to share information about their illnesses freely with coworkers.
You can’t control this completely but you can let employees know that the company has an obligation to maintain employee privacy regarding all medical conditions no matter how small.

talkative : High angle full length portrait of a loquacious long-winded businessman looking up at the camera talking with his mouth open emphasising the point with his finger Stock Photo

When [employees] share information freely, the employer has less control over what opinions coworkers and supervisors form about the employee’s ability to carry out their duties.

Employees will make assumptions based on very little real data!”

stereotypical : A man rides an arrow to jump over the word Stereotype to illustrate the power of justice and fairness in overcoming stereotyping, discrimination and racism

 

We have been touting the value of handbooks for years.    See our two-part “Top Ten Essential Components Of An Employee Handbook,” posted on July 15, 2010 and August 2, 2010.   We intend to write again soon on this topic.

handbook : employee manual book illustration design over white

“The reasons for employee handbooks are many,” says business consultant Jan L. Makela in The Frederick News-Post, “but primarily, they are an employer’s first line of defense in the event that a claim is filed against you by a current or former employee. If you don’t have written policies, you have no defense.”    We reprise publication of his remarks because they are important.

You will find that Jan’s short article supports our mantra: “You Need A Handbook!”    It describes the typical contents of a good employee handbook, such as, for example, anti-discrimination policies, standard of conduct, general employment procedures, employee benefits, and nondisclosure agreements, and the reasons for inserting these.

“Handbooks are an absolute necessity for a business,” says Jan, and the “intent is to spell out for the benefit of the employees and your company what can be provided and what the expectations are in working for your company.”

Hrmagazine.co.uk has reported an interesting survey made by a UK employment law firm which analyzed the size of companies and the number of employees reporting discrimination issues.

It seems that their survey turned up the fact that  “10% of workers in companies with 50 staff or more face barriers due to their gender, compared to 1.3% in micro-businesses (between one and nine employees) and small companies (between 10 and 49).”

“Additionally, in micro-businesses and small employers the number who have witnessed age discrimination is almost zero, compared to 20% in medium-sized employers and larger.”

One partner of the surveying firm opined that when a company grows rapidly it may tend to focus less on HR issues and more on things like finance.    Moreover, she said, “If you’ve grown from a small business of fewer than 10 people, it can go from feeling like a family to something less personal.”

So is small better?   Does this survey ring true in the US?

The survey is hardly scientific, but assuming the correctness of its general results, and assuming the results hold true in the US workplace, what does this mean for employers?    Well, first of all, we always preach that preventive law is preferable to dealing with claims and lawsuits down the road.  Its cheaper, less distracting and supports the old adage that “an ounce of prevention. …”

That said, we would like to repeat some of the “tips” we have provided in the past to avoid problems before they happen.   But given these results, accurate or not, it behooves mid-sized employers and employers with growing companies (the ubiquitous start-ups) to follow our common sense tips below more closely (especially numbers 3 and 4).

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Ten Tips To Avoid The Pitfalls Of The UK Survey

1.  Know the basics of anti-discrimination law, both federal and in your state and city. Be familiar with what a “protected category” is, what you can and cannot ask in an interview, what constitutes harassment, what is retaliation and an “adverse action,” and what to do if an employee complains of discrimination.

2.  Know who you hire. Consistent with the anti-discrimination laws, and without violating laws relating to, by way of example, credit and criminal record privacy, and health record confidentiality, do the legal and proper due diligence before you hire someone.

3.  If you are big enough, hire a knowledgeable and experienced HR person.

4.  If you cannot afford or justify hiring an in-house HR person, make sure that you have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, or even an outside vendor who works with employers and know the terrain.

5.  Draft and maintain an up-to-date employment manual, which incorporates all of your company’s policies and procedures, and keeps current with the ever-changing law.

6.  Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it.

7.  Conduct periodic training programs for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies.

8.  Keep good and thorough records, and document everything, especially employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support disciplinary measures, termination or reductions in force.

9.  Let all employees know where and who to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly.

10.  Above all, obey the “Golden Rule” as it applies to the workplace: from the top down, be as honest, transparent and forthright with employees as is consistent with business considerations, keep employees in “the loop,” and maintain a fair and consistent workplace. Employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

Any questions?

 

 

Having taken a long weekend off, the writer has reached into his “Best Hits” collection to repurpose (i.e., copy almost verbatim) the following golden oldie.

Everyone loves lists.  Although not everything is reducible to a simple list, nonetheless here is a good working list of ten tips to lower your risk of being sued for employment discrimination (and ipso facto lower your blood pressure).

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1. Know the basics of anti-discrimination law, both federal and in your state and city. Be familiar with what a “protected category” is, what you can and cannot ask in an interview, what constitutes harassment, what is retaliation and an “adverse action,” and what to do if an employee complains of discrimination.

2. Know who you hire. Consistent with the anti-discrimination laws, and without violating laws relating to, by way of example, credit and criminal record privacy, and health record confidentiality, do the legal and proper due diligence before you hire someone.

3. If you are big enough, hire a knowledgeable and experienced HR person.

4. If you cannot afford or justify hiring an in-house HR person, make sure that you have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, or even an outside vendor who works with employers and know the terrain.

5. Draft and maintain an up-to-date employment manual, which incorporates all of your companies policies and procedures, and keeps current with the ever-changing law.

6. Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it.

7. Conduct periodic training programs for all managers and employees in anti-discrimination, anti-harassment and anti-retaliation policies.

8. Keep good and thorough records, and document everything, especially employee performance and evaluations, problems and complaints, and any other matters that may be necessary down the road to support disciplinary measures, termination or reductions in force.

9. Let all employees know where and who to go to register a complaint, so as to give an aggrieved employee recourse if he/she experiences discrimination or feels aggrieved. Treat all employee complaints seriously and confidentially, and investigate all claims promptly and even-handedly.

10. Above all, obey the “Golden Rule” as it applies to the workplace: be as honest, transparent and forthright with employees as is consistent with business considerations, keep employees in “the loop,” and maintain a fair and consistent workplace. Employees who feel that they are treated fairly and respectfully are less likely to complain or sue.

Our post of April 9th set out what we called our “Ten Best Tips To Stay One Step Ahead Of The EEOC.”   Readers supplied a couple more tips:

Dwayne Clark, a conflict resolution professional in Jacksonville, Florida:

“I like all ten of your recommendations.   I would caution the use of “zero tolerance” because this implies “all or every case without exception.”   If not used very carefully, it may come back and bite you in your derriere.

My recommendation is leave your company some room for inconsistencies that could bring on different circumstances and you can issue different investigative results. You can still take affirmative steps and retain an effective deterrent to harassment issues.”

Tracie Zimmerman, a mediator and executive coach in Houston:

“This is great list and nice article! Sounds reasonable . . . but the workplace is an environment of human beings and we humans complicate it.

In one segment of the mediation certification courses I conduct, we discuss bias and prejudice.  I then provide scenarios from everyday life and corporate America and the participants decide whether prejudice or bias is involved in the scenario. This session is always critiqued as a favorite segment . . . and not one group of practicing attorneys and former judges yet that have been able to agree on whether the various scenarios involve bias or prejudice!

In the workplace, each employee arrives at work with a set of values, experiences, preferences, and beliefs which is the lens by which they see the world. How we see the world, is how we believe it to be.”

Have An HR Department?

On April 9th we wrote that “the Wall Street Journal published an article which discussed the pros and cons of having an HR department, and began:  “Sometimes the only thing worse than having an HR department is not having one.”

William “Bill” Wilson, a consultant in the Chicago area, made the following comment:

“Having one is only a plus when they know, and follow the law.  Unfortunately, it’s too easy to find HR departments who don’t have a great deal of respect for the law, constantly challenge – or worse, ignore – the limits, and then wonder why they find themselves in trouble.  You need only review a sampling of the case law over the last 20 years to convince yourself that compliance was not the top priority for the HR departments at many companies.  And anecdotal evidence of the failures of HR personnel isn’t hard to find: one colleague told me recently that the hardest part of hiring an over 50 worker for his department was the flack he had to endure from HR.

Take a look at want ads if you want further proof:  some of them are age cases dying to be litigated. Ask anyone who has been in a job search what they think of most HR functions, and then be prepared to duck.”

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