We hear this often from business owners, managers, elected officials and administrators. Well, the answer is clear. Case after case holds that anti-discrimination training may be critical to the defense of a discrimination claim.
Discrimination claims continue to clog the administrative agencies and courts, nationwide. Verdicts are larger. Jurors shake their heads in wonder why employers continue to allow managers to engage in unlawful discriminatory conduct. In fiscal year 2012, the EEOC alone reported nearly 100,000 job bias charges filed against private employers in the United States. The bulk of these suits alleged sexual harassment and/or retaliation by an employer against an employee for participating in a harassment claim. There continues to be large judgments and settlements; in 2012, there was a record judgment of $168 million awarded to an individual who had been the victim of sexual harassment and retaliation by her employer.
Why so many claims? Why not? If the claimant goes to an administrative agency, the individual has no costs to bear, nothing to lose. And, if the claim ends up in court, the employer is at risk of having not only to remedy any discrimination, but to pay both the employer’s legal fees and the claimant’s, too. Shouldn’t every employer’s goal be to avoid these claims?
The U.S. Supreme Court and other court decisions in recent years have expanded the scope of retaliation claims, have changed how a supervisor is defined, have allowed a supervisor’s illegal motivations to be imputed to a manager taking action against an employee who relies on that supervisor’s opinion, and continues to further define what “harassment” means. The legal playing field continues to change. This is another challenge to effectively running an organization.
Therefore, it is more important than ever for an employer to ensure that its anti-harassment policies comply with current law and that its supervisors and employees are aware of what constitutes harassment and what protections exist for them. Front line supervisors are in contact with employees daily. What they say and what they do are continually being observed. “Discrimination” can be complicated … and ignorance is not a defense.
It is hard to imagine an employer defeating a sexual harassment claim without having anti-harassment training and a written complaint procedure. Moreover, it is not enough merely to have a training program and a reporting procedure. Usually, in order for an employer to avoid liability, it must show that its anti-harassment training was effective and that the reporting procedure actually was in place and has worked.
An employer will be hard pressed to avoid liability if a claimant is able to show that previous harassment complaints by other employees were never addressed, or that employees did not know to whom they should report a complaint because the company’s anti-harassment program was poorly written or not in their first language.
The courts have held that evidence that an employer has not monitored the workplace, failed to respond to complaints, failed to provide a system of registering complaints, or effectively discouraged complaints from being filed, all could be relevant when an employer argues that it exercised reasonable care in preventing harassment.
Certainly, all new employees should be provided antiharassment training. Moreover, a complaint procedure should be carefully written to work the way the employer intends. Finally, supervisors and managers should receive anti-harassment training on a recurring basis so that they can be aware of changes in law, regulations and court decisions which will affect their or their employer’s defense against a claim.
Clearly, employers should also train their supervisors on the ways discrimination can be costly and time consuming; every supervisor’s job duty and responsibility should be to avoid costly discriminatory acts. Proactive employers do all they can to shield their organization from liability.