#MeToo: It Can't Happen Here...That's Just Hollywood

by Miller & Martin PLLC

Miller & Martin PLLC

Those of you who have been working in HR for any length of time unfortunately can provide your own accounts as to why the above title is not true regarding sexual harassment.

If a good side can be found of the fallout from “#MeToo,” it is that this topic has now moved back from being referenced only on page 29 of an employee handbook to a front-and-center training topic. During the economic downturn of 2008, many employers stopped conducting annual harassment training as a budgetary savings item. Then when business started improving, it remained off the radar screen – as again, the thought by many outside HR was, “It’s in the handbook isn’t it? We have a policy; that should be enough.”

So, Now What?

Are harassment policies and training even still relevant when it appears most employees are going to take their complaints “to the streets” of social media by tweeting about them or putting them on Glassdoor, Facebook, etc. rather than giving HR a chance to address them?

The Answer from a Legal Perspective is Still YES.

Almost exactly a year ago today, we previously outlined the EEOC’s current Guidance concerning harassment training. (A new such Guidance is expected later this year to “re-re-state” that this is an important issue for anyone who has been living on Mars for the past few months.)

A few tips from this Guidance are not likely to change and remain helpful to employers in this area.

In-Person is Best

While we realize this option is not always financially viable if your workforce is spread out across the country, if logistically it is possible, providing “live” or even “Skype” harassment training versus a video is best for several reasons. First, even with “quiz questions” to make sure your employees complete the training and are paying attention, a video can make harassment appear unreal -- literally like something they watch on TV but does not happen in “real life.” Second, video training cannot be customized to your workforce as live training can be. Third, video training makes it impossible for employees to interact or ask questions about possible real-world situations. This issue can be somewhat overcome by reminding employees as part of the video training that HR is available to answer their questions at any time. So, while "in-person training is best," a video is still better than nothing.

Not All Harassment Training Materials are Created Equal

If you decide to use a video, make sure you have actually watched it -- rather than just relying on the recommendation of someone from your local SHRM chapter who let you borrow it, said it worked great for their workforce, etc. Some of the harassment training tools that are out there truly are “old school,” meaning they were created back in the 80’s or 90’s such that the content is no longer relevant to today’s workforce and may not even portray an accurate picture of the current status of the law. It wouldn’t be a bad idea to ask your employment attorney to watch the video before you use it for this reason, as well as those discussed in the next section.

Update the Content

Along with advocating in-person training, the EEOC’s 2017 Harassment Guidance also urges employers not to focus on egregious examples of harassment in their training. Most employees know not to use racial slurs or physically grope others (if not, you definitely need to change your harassment training content and format!). But what they may not realize can “cross the line” are more subtle forms of harassment, such as massaging others’ shoulders because “you think they look stressed” or hugging or otherwise touching others because “you think they look sad today.” Many employees mistakenly believe that the standard for harassment is “treat others as YOU would like to be treated” when the actual standard is “treat others as THEY would like to be treated.” It is a subjective “in the eye of the beholder/receiver” test, not one of the actor or speaker’s good “heart” or “motives” being judged.

The EEOC advocates that harassment training should focus more on general respect and civility rather than merely avoiding egregious conduct or words that “could get the company sued.”
Those of you who have used Miller & Martin to conduct your harassment training recently may recall that -- for once agreeing with the EEOC! -- we have been calling it “Employee Relations” or “Professional Interaction” training for the past few years -- as even the term “harassment training” had come to have a negative or stereotypical connotation for both business owners and employees. Inviting an attorney in to conduct “harassment training” sounded like an invitation for trouble rather than a way to improve the workplace. 

The final reason to give some serious thought to the content, as well as the form, of your harassment training is that this training could become an exhibit in a harassment lawsuit. Choosing a video or other material based on its ability to engage your workforce with humor or shocking examples may make it appear to a jury that you believed harassment training was a joke and did not take it seriously -- perhaps making it clear to them WHY your company is now in court facing a harassment suit -- and why they should rule in favor of the complaining party.

Supervisors Should Receive Different Training than Non-Supervisory Employees

While all employees should receive training on your company’s harassment policy and a general overview of the types of conduct which are prohibited under it as outlined below, you should also at least every other year provide additional training to supervisors regarding their obligations when they see harassment or it is otherwise reported to them and also reminding them of your anti-retaliation provisions regarding not just those who report harassment but all those who participate in an investigation of the same.

Harassment Reporting Should Not Be Part of a General “Open Door” Policy

Unless you are planning to train all of your managers on how to conduct a harassment interview, your harassment training or policy should not include an open-door type “report harassment to any member of management” instruction. Supervisors should be trained to direct harassment complaints to HR. As an alternative if HR is involved in the harassment, unavailable, etc., a secondary reporting avenue should be another high-level member of management such as the head operating officer or plant manager. Be mindful that whomever this person is will likely be deposed if a harassment complaint “goes South” and becomes a harassment claim or lawsuit. So, give some thought as to who would represent the company well in this capacity. Having a couple of alternatives outside of HR, one male and one female, also is ideal if possible.

Make Sure “Outsiders” Are Covered

The focus of harassment training often is supervisor harassment then some mention of co-worker harassment. Be sure you also tell employees what to do if “outsiders” -- vendors, contractors or even customers -- harass them. Tips here should include (1) do NOT take matters into your own hands by getting into a verbal or physical altercation, etc. with the “outsider,” and (2) let your supervisor or HR know about the harassment as soon as possible, so THEY can look into the situation and take appropriate remedial action.

Make Sure Communications Outside of Work Are Covered

Again here, the focus of harassment training is usually on scenarios which happen on the plant floor, in the office, etc. Be sure to also tell employees what to do if harassment occurs outside the workplace via social media, email, text or voicemail messages, videos or other images, unwanted Facebook posts or repeated “friend” invites, etc. Here again, they should be instructed to report this to their supervisor or HR just as they would harassment which occurs at work.

Make Sure All Protected Groups Are Covered

Finally, make sure the focus of your harassment training goes beyond just sex and race harassment to also provide examples of inappropriate comments and conduct relating to age, pregnancy, national origin, color, disability, genetic information, military service and religion.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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