Take-away: Employers often underestimate the importance of providing training to prevent harassment and discrimination in the workplace until they find themselves defending a claim of harassment or discrimination. Conducting appropriate training, however, can mean the difference between having a defensible claim and being automatically liable for the unlawful conduct of a supervisor. While some employers may believe that training is expensive and that money for training could be best used for other things, the cost of taking preventative measures to avoid potential exposure for claims of harassment and discrimination is a pittance compared to the costs an employer faces in defending, much less losing, a claim of harassment or discrimination.
Discussion: The United States Supreme Court sent a strong message to employers in the Burlington Industries, Inc. v. Ellerth case, holding that employers are always liable for a supervisor’s harassment if it culminates in a tangible employment action (i.e. firing, demotion, reduction in salary). If there is no tangible action, an employer may be able to avoid liability or limit damages from a supervisor’s unlawful conduct if that employer had an appropriate anti-harassment policy and educated its employees on that policy.
Training on preventing discrimination and harassment and educating employees on EEO policies not only can limit liability, it is also vital to a healthy workplace environment. Good training teaches both employees and managers that they have the right to work in a workplace free of discrimination and harassment and demonstrates the employer’s adherence to laws and policies that prohibit discrimination and harassment in the workplace. Educating employees on unacceptable conduct and its consequences can improve the quality of the workplace by providing a clear expectation of the behavior an employer expects from its employees.
Further, while many associations have EEO policies, they have not properly trained their supervisors on such policies, and lack of training may result in inconsistent enforcement. Policies are only effective if they are followed. Managers and supervisors are often an employer’s first line of defense to claims of harassment or discrimination. It is imperative that supervisors and managers understand that their conduct can result in potential liability to the employer. When defending against a claim, the only thing worse than not having a policy is having a policy that was not followed. Thus, not only is it important to train employees, it is equally important to train supervisors so that they understand and adhere to the harassment policies and grievance process.
By providing EEO training, not only are employers educating employees that harassment and discrimination will not be tolerated, but supervisors and managers also learn of their obligation to be proactive and monitor workplace behavior, as well as to respond to and promptly investigate complaints of harassment or discrimination to avoid potential liability. Thus, providing training to prevent harassment and discrimination is a way to avoid or limit liability from harassment and discrimination claims.
Counseling and educating employees on discrimination and harassment in the workplace should be an annual occurrence both for the employees and supervisors, and records of attendance at such trainings should be kept in each employee file. In addition, employers should routinely inform employees of where to find informational resources on harassment and discrimination.