Our Company Has Preventative Policies . . . Isn’t That Enough? No. Courts have overwhelmingly agreed that a written policy is not worth the paper it is written on, unless it is effectively implemented through training.
As more fully discussed in the other articles in this Labor & Employment Issue, the United States Supreme Court issued key decisions a few years ago that enable employers to limit or even avoid liability in many harassment and discrimination cases. The courts that have subsequently applied these decisions have all focused on whether the employer provided effective training to supervisors and employees regarding unlawful discrimination and harassment. Those employers that demonstrated its commitment to compliance by having given such training were more likely to escape liability, or at least avoid punitive damages. In contrast, those employers who attempted to rely solely on written policies found themselves imposed with hundreds of thousands of dollars in damages.
What Are The Benefits Of Providing Training? As mentioned above, one of the most palpable and significant benefits of effective training is that an employer may be able to avoid steep punitive damages or liability altogether. However, training your workforce will also provide other, more subtle, benefits. Employers who train their employees are sending a clear message that they care about what happens in the work place and are willing to invest in their employees’ well-being. Employees who have been trained will more quickly recognize problematic conduct and will know how and where to complain before a potential problem becomes a real problem. Early reporting and intervention will allow an employer to remedy the situation before an employee seeks legal redress. Moreover, employees who are well informed and have been trained to know what behaviors violate the law are less likely to engage in illegal conduct and generate claims against their companies. There can be no question that, as compared to the costs of defending a lawsuit and paying damages, the costs of training a workforce are miniscule and the benefits countless.
Can’t We Provide Solely Sexual Harassment Training? Employers should educate their employees about harassment and discrimination based on all legally protected categories. While sexual harassment cases were ahead of the curve in setting precedent in this area, federal and state courts have uniformly applied the principles enunciated by the Supreme Court in cases of all types of harassment and discrimination, including that based on sex, race, religion, national origin, age and disability. Moreover, effective training that covers all of these areas does not require much additional time or resources.
If Our State Is A "Strict Liability" State, What Good Will Training Do? In certain states, including Massachusetts and California, an employer is responsible for the harassing conduct of its supervisors, regardless of whether the employer knew or had reason to know of such conduct. Although an employer in these states may not be able to avoid liability, the company could very well rely on its anti-discrimination training and other good faith efforts to escape punitive damages. Moreover, employers in these states who train their workforce will reap the myriad of benefits discussed above.
What Consequences Will My Company Face If We Fail To Train Our Employees? Employers who choose not to provide training expose themselves to heightened liability and damages. Verdicts and settlements in harassment and discrimination cases have continued to rise in the past several years. As jurors become more savvy with respect to the laws in this arena, they have grown increasingly outraged when confronted with evidence supporting claims for workplace harassment and discrimination. Juries and courts inevitably award higher damages when they see an employer who merely issues a written policy and then essentially sticks its head in the sand while discrimination and harassment are condoned. Likewise, federal and state agencies that enforce these laws have become increasingly concerned with the existence and adequacy of training provided by employers. In particular, the EEOC and MCAD consistently require employers to implement or continue training in response to claims of all types of harassment and discrimination.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
