By Byrona J. Maule | Phillips Murrah P.C. | PayCom Report
[ JUNE 2010 – OKLAHOMA CITY, OK ] – Your company has an up-to-date employee handbook. It has an Equal Opportunity Employer Policy, an Anti-Discrimination Policy, and an Anti-Harassment Policy. Each policy clearly outlines how and to whom violations should be reported and specifically states that no employee will be retaliated against for reporting or participating in a discrimination or harassment investigation. You feel bullet proof. But are you?
If I asked your front-line supervisors when last they read the employee handbook in its entirety, I wonder what they’d say. Has it been a week, a month, a year—or since they were new hires going through orientation? What if the questions were even more specific, such as the last time they read the Anti-Discrimination policy; the range of discipline for violating the Anti-Discrimination policy; how the company defines sexual harassment; and whether it is a “Zero Tolerance” policy?
Since the U.S. Supreme Court issued the now well-known Ellerth(1) and Faragher(2) decisions in 1998, much focus has been placed on creating policies and procedures that show that employers take reasonable steps to prevent and promptly correct harassment and advise employees how to utilize these systems—thus giving rise to the defense that the employee unreasonably failed to utilize these systems.
However, simply putting the policies and procedures in place might not be enough, especially if the policies and procedures aren’t utilized in the daily scope and practice of your business. So, how does a company address this potential problem? Annual training. Not canned training, where your employees and supervisors watch a cheap, mass-produced video of a woman being sexually harassed by a mustached coworker—but training that is specifically developed for your company’s policies and procedures.
ELEMENTS OF A SMART EMPLOYEE TRAINING PROGRAM
- Cover the basics. There’s no way around it; a company must begin by teaching employees about the company’s legal obligations. This should include Title VII; the ADA; the ADEA; 42 USC 1981; FMLA; USERRA; and GINA to name a few.
- Get specific. Provide detailed training on each company policy—including policies that pertain to reporting, anti-retaliation and discipline for violations of these policies.
- Clarify obligations. Do this with a straightforward communication to supervisors outlining their obligations—such as reporting and investigating complaints—and, separately, to employees outlining their obligations—such as treating each other with respect and reporting policy violations to the appropriate supervisor.
- Define the H.R. role. I can’t stress this enough: Make sure employees understand the responsibilities of the company’s Human Resources department and the resources it offers! With a well-developed H.R. department designed to identify, investigate and correct potential discrimination and harassment issues before they develop, a company can avoid many of the pitfalls of employment-related litigation.
When supervisors and employees know the company’s policies, understand their basic rights and obligations and have access to a responsive Human Resources department whom they can confidently approach with problems, most—if not all—issues can be resolved well before they become topics of litigation.
(1) Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)
(2) Faragher v. City of Boca Raton, 524 U.S. 775 (1998)