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It's Time for the Sex Talk

Written by: Charla Bizios Stevens

Significant jury verdicts have made splashy headlines, providing employers with a stark reminder to maintain a workplace free from harassment and discrimination. Yet despite increased attention, inappropriate workplace behavior still exists in almost every type of work environment.

In this decade of strained budgets and lean workforces, companies often ask what they are legally required to do for training managers and employees. However, this is the wrong question to ask. Rather than focusing on how to cause the least disruption to their businesses and minimize the costs of compliance, employers should create the most effective training and compliance programs possible.

The costs on the front end of putting together such programs pales in comparison to the costs of failing to do it correctly- low morale, decreased, difficulty recruiting and retaining talented staff, and legal expenses associated with responding to complaints.
 
The Policy. Every employer should have in place a clear and comprehensive anti-harassment/anti-discrimination policy. An effective policy is no longer limited simply to defining and prohibiting sexual harassment, but should also prohibit discrimination and harassment on the basis of race, color, religion, nationality, gender, sexual orientation, age, disability, genetic information, veteran status, marital status. The policy should define harassment and discrimination and describe how the company will investigate and respond to complaints.

It is also critical that the policy clearly prohibit retaliation against any employee who complains of discrimination or cooperates in an investigation. A good policy will also require employee cooperation in investigations, discuss the limits of confidentiality and warn employees that false complaints will result in discipline.

Most companies now also notify employees of their intention to respond to complaints of inappropriate workplace behavior which does not rise to the level of harassment in an equally forceful way.
In light of the recent explosion of complaints of workplace bullying it is appropriate for companies to define expectations of professional behavior and to have policies in place that allow them to discipline employees for violations.

The Training. The video or web-based training sessions that have gained popularity in recent years are neither the most effective in eliminating discrimination or at minimizing legal risk.

Although these programs might be useful as an initial orientation to a new employee or a stop gap for folks absent on training day, they do not meet the standard of care set out by the courts.

An effective training module, includes;

• A live interactive session with opportunity for discussion and questions.
• Definitions and examples of inappropriate behavior.
• Participation at all levels of employee from senior management through line workers. This is critical to show management buy-in.
• Annual training for supervisors and semi-annual training for all employees; some initial training for new hires. 
• Customizing the program to fit the workplace including the use of hypothetical scenarios that are relevant to the work environment.
• Written materials that the participants can keep as a reference.
• A clear description of the process for reporting complaints.
• A strong message that retaliation will not be tolerated.
• Translation of the policies and the program into the languages spoken in a multi-cultural workplace.

The employer able to demonstrate commitment to preventing and responding to harassment and discrimination will be better equipped to defend against a lawsuit. Employers who have responded to charges of discrimination before administrative agencies such as the NH Commission for Human Rights and the U.S. Equal Employment Opportunity Commmission are asked to provide copies of their policies and training materials.

The well-prepared company will have a current policy and a comprehensive training module with a record of when every supervisor and employee was most recently trained. The time and expense of such a program is well worth the investment compared to the cost of failing to have one.

Charla Bizios Stevens is a shareholder in the Employment Law Practice Group at the law firm of McLane, Graf, Raulerson & Middleton, P.A. Charla can be reached at [email protected] or followed on Twitter at @charlastevens. She also contributes regularly to www.employmentlawbusinessguide.com.

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