Sexual Harassment Training : ELT, Inc. : AB 1825, Employment Law, Online Harassment, Compliance, and Harassment Training

It seems that we go through cycles in the employment law world. Every couple of years new forms of harassment and discrimination emerge. Today, harassment based on pregnancy, religion, national origin (post 9/11 backlash), and race and color (EEOC Announces New Initiative To Fight Racism and Colorism) are making the news and creating buzz on the internet. Other trends comes from emerging rights and protections — like the inclusion of sexual orientation and gender identity as protected classes under state law and many company policies.  

What doesn’t change, however, is the power of words.

Words matter. They matter to your employees, clients, shareholders, and customers. When employees and leaders use toxic words—like slurs about race, sexual orientation and national origin—the organization’s reputation can suffer.  Even worse, if the organization tolerates the conduct, it can anger and alienate your entire workforce.  

Employees have very strong feelings about what makes certain words “right” or “wrong.”  Some people use derogatory terms with impunity, unaware of their impact.  Others make a conscious decision to use certain words, as a way of “owning” them, and taking back their negative connotations.  And then there are people who have zero tolerance for certain words altogether.  

In the past several weeks, a cadre of leaders and celebrities have brazenly made inappropriate slurs—and we’ve seen the backlash that’s followed.  

Hate speech has a way of making the news …

It started last October with Grey’s Anatomy star, Isaiah Washington. During a heated altercation on the set, Washington allegedly called his called his costar, T. R. Night a “fag.” The situation of course generated buzz in the entertainment industry and blogosphere, and put the spotlight on Washington – and ABC.

Washington received a lot of negative publicity, and tarnished the image of the immensely popular TV show. (Isaiah Apologizes For Unacceptable Remark). After the cast and crew of Grey’s won a Golden Globe in January, Washington quipped in front of hundreds of reporters that he never called his co-star a “faggot.  His flippant use of the word again, along with his denial, incensed cast members who were vocal in their opinions that Washington’s conduct was totally unacceptable.   

During the ensuing weeks, the damaging coverage continued as outsiders generated more and more negative press for the star and the show. Some speculated that Washington may lose his job as a result of the misstep—but at a minimum, Washington was required to make a public apology to T.R., to his fellow cast members, and to the GLBT community.

Washington then headed off to rehab for some repair and self analysis (perhaps along with Linsday Lohan and Britney Spears?)  We’ll see where that goes.  In any event, it seemed that Washington sparked a trend …

Just a few weeks later, well-known former NBA all-star, Tim Hardaway, found himself under the same harsh spotlight as Washington. Retired NBA player John Amaechi had recently announced that he was gay, and authored a book about his experiences as a gay man in the NBA. His revelation sparked a lot of discussion and exposed some deep-seeded biases against the GLBT community.  During a live radio interview, Hardaway was asked how he would have dealt with a gay teammate while he was playing basketball.

Hardaway’s response exposed his raw bias and homophobia.  Even after the interviewer commented that his statements were homophobic and evidence of bigotry, Hardaway continued with his slurs.  He made it clear that he “hates gay people” and that they have “no place in America or the world.” (Retired NBA Star Hardaway Says He Hates Gay People).

When asked later about Hardaway’s statements, Amaechi said that the comments opened up the floodgates for others to make similar hateful statements about gays. Amaechi has received threats and hate mail since his announcement. Astonishingly, even current players have made some very powerful and revealing statements. One of the NBA’s most popular players, LeBron James, announced in an interview that he would have difficulty trusting a gay teammate.

But the slur trend didn’t stop there.

Just last week, a Minneapolis police lieutenant, Bob Kroll, joined the ranks by making a ridiculous and offensive slur against Muslims during an ethics training course—attended by co-workers, his boss, and the chief of professional standards.

Oh the irony.

Kroll’s comments were aimed at U.S. Rep., Keith Ellison, a Minnesotan and the first Muslim elected to office. Kroll remarked about “being at war with Islamic terrorists” and stated that “one was elected to Congress.” When an officer, angered by the comment, asked if Kroll was calling Ellison a terrorist, Kroll said, “He’s Islamic and we are at war with the Islamic.”  

Wow.

The statements led to an internal investigation, and resulted in a formal apology from the Minneapolis Chief of police—with special note paid to officers of Muslim faith.  The Chief of Police noted appropriately that:

None of us are perfect. We all have prejudices. Prejudices are often blamed on ignorance, but often they are just the result of just not knowing or realizing that we all have general preferences and dislikes. It is human nature. However, humans have the ability to reason. If you endeavor to keep an open mind and at least think about criticism with some introspection - you will be a better person …

These recent events remind us all that everyone—no matter how famous, how educated or how vital to an organization—enters the workplace with unique experiences and biases.  In some instances, these biases are completely toxic, and when they’re acted upon, they can become illegal.

Many employees are completely unaware of their biases, or simply don’t understand that expressing their biases is offensive and prohibited.  Most employees are smart enough to keep their biases hidden during the hiring process. And most employers are not in the business of changing employee biases (and doing so can be extremely difficult, when it is even possible). But, employers still have an obligation to create a workplace of respect and tolerance for all employees.  Employees need to understand the consequences if they engage in hate speech or other offensive conduct.

And this is where harassment training comes in.

Employers should be training all of their employees on harassment and discrimination prevention, and the training should address sexual orientation and gender identity, as well as religion and national origin. While training may not change the way that people are hardwired, it will ensure that your employees understand:

• The organization’s expectations around respectful treatment,
• The types of conduct that cross the line—including hate speech of any sort, and
• The consequences of engaging in such behavior.

Don’t underestimate the power of good training. If done right, it sends an effective and consistent message to all your employees.

And when you’re confronted with an employee who just doesn’t “get it” when it comes to hate speech, you should consider sending them packing.

My candidate of the month?  Ann Coulter, who last week, jokingly referred to presidential candidate, John Edwards as a “faggot,” playing off the Grey’s Anatomy controversy.  (Ann Coulter Under Fire For Anti-Gay Slur).

Defending her comments this week, Coulter responded with this little gem:

This is the same thing we go through every six months. I say something, the same people become hysterical, and that's the end of it. The lesson young right-wingers ought to draw from this, it's really not that scary to attack liberals.

I’m sorry, is she for real?

It’s not just the liberals that think Coulter is way out of line.   Since her comments from this week, Verizon, Sallie Mae and the Georgia-based NetBank have requested to pull their ads from Coulter’s website. (See Yoji Cole’s recent articles in DiversityInc for the latest on the story.)

Money, I guess, can talk louder than slurs.

Despite progress and greater awareness, racism and colorism continue to plague American workplaces. Citing Gallop and CNN polls, the EEOC recently publicized that 31% of Asian Americans and 26% of African Americans say they have either witnessed or experienced discrimination. In addition, 84% of Blacks/African Americans and 66% of non-Hispanic Whites/Caucasians think racism is a ”very serious” or “somewhat serious” problem in America.

Those are big numbers.

No doubt racism and colorism manifest themselves in every aspect of employment, from hiring to termination. Sometimes the problems are at the hands of individual managers, while other times they persist in broader (and facially neutral) employment policies. We’re also seeing new forms of discrimination as a byproduct of technological advancements—such as “sorting job candidates by ethnic enclaves and ZIP codes.” (See EEOC Campaign Takes Aim at Race, Color Bias)

Regardless of what form — traditional versus new 21st century — the issues of racism and colorism in America are drawing a lot of attention from the EEOC. Race-based charges (those involving claims of race discrimination, racial harassment, or retaliation arising from opposition to race discrimination) continue to be the most common charges filed with the EEOC. During the EEOC’s 2006 Fiscal Year 27,238 charges alleging race-based discrimination were filed. This amounts to 36% of the charges filed that year. (EEOC: Why Do We Need E-Race?).

Recently the EEOC announced a new initiative called E-Race that is designed to eradicate racism and colorism in the workplace. They have also indicated that fighting racism and colorism is going to be a primary objective of the agency. While some suggest that the EEOC’s efforts will be more about education and outreach — versus enforcement — no organization wants to be on the enforcement end of that fight. This is especially true when the EEOC’s enforcement efforts will focus on systemic and persistent racism in the workplace. These suits are not only expensive, but time consuming and potentially disastrous for an organization’s reputation. Even if you don’t find yourself battling the EEOC in a large action, you should expect to see the impact of the EEOC’s educational efforts, which could easily result in higher charge numbers against your organization.

What are smart employers doing? They’re noting the EEOC’s new focus, and taking action. Three basic steps are critical:

• Reviewing and/or developing a solid EEO policy and communicating it to all employees
• Auditing employment practices (such as hiring, firing, pay, and discipline) with the assistance of an attorney
• Training all employees and managers with high quality anti-discrimination programs

We’ve all read the early headlines. The Boomers are aging … leaving a huge hole in the workforce when they finally retire.

But then something interesting happened … the headlines shifted and so did the messages about the Boomers.

The Boomers changed their minds — now they plan stick around, stay in the workforce, and try to keep themselves engaged. Doing what and on whose terms? … well that’s one of the big questions.

For employers, this news brings a whole host of complex issues — ranging from health care costs, to crafting relevant compensation programs, to developing more flexible workplaces, to (yes, you knew it was coming) managing the new face of workplace discrimination and harassment.

Age is one of those protected categories that Americans just don’t get — unless of course you are part of that “graying workforce.” In that case you may take it VERY seriously. Managers and senior leaders are too often nonchalant about age and tend to link ability to succeed (or not succeed) with advancing years. Many employees have never even stopped to think about age sensitivity. Aging just a fact of life and it happens to all of us.

The interesting thing is that unlike other forms of illegal discrimination, little has been done to really combat the age-related stereotypes and myths that persist in the workplace. You’ve most likely either heard them or voiced them yourself at some point. Some of the most prevalent include:

• If you haven’t made it to Director by a 35 or some other ridiculous “magic” year… well then you’re doomed to a life in middle management. 
• If you’re approaching 50, then you must be considering retirement. 
• If you’re nearing retirement, you aren’t adding value because you already have one foot in the RV.
• If you’re an older worker, you aren’t learning new skills (Check out this interesting article on ageism in the IT world -- Age discrimination: Is Open Source different?)
• Older workers can’t compete with younger workers who have energy and drive.  

And the list goes on and on…

To date, age claims have not been exceedingly high profile for employers. Sure — some employers have been socked with big verdicts, some with nasty class actions, and others with painful individual employee claims, but that just goes with the territory. Right? Even the EEOC reports a decline in number of age charges it has received in recent years (but to be fair, overall charge numbers have also declined). Peaking at all most 20,000 charges in 2002, age claims declined to 16,500 by 2006. They represent almost 22% of the all charges received by the EEOC. (EEOC Stats On Age Charges).

But age trends are changing, and employers should take note.

• People are living longer and working longer.
• Some believe that boomers will have newfound courage as they enter a new phase of life. Some suggest that they will be more apt to assert their right to be free from discrimination (whereas in the past this group was loyal to their employer and afraid of losing their jobs in a tough economy).
• News coverage of age issues has increased — and with it knowledge about legal rights and options. Even though charges are declining, these numbers don’t reflect state law actions and demand letters. Lawyers are reporting increases in the number of age cases they see and demand letters that they are writing. (Age Bias Suits on the Rise With Older Employees Working Longer).
• Recent large verdicts make litigation more tempting. And there are often no damage caps in state courts — consider the $11 million verdict last year for an engineer passed over for promotions. Mody v. General Electric, No. 3:04 CV 358 (D. Conn. 2006).
• The U.S. Supreme Court cleared the way for age-based disparate impact claims (individual and class) only 2 years ago. Prior to this decision, not all courts recognized this claim. The result? Employers should expect to see more cases alleging that facially neutral policies or practices have a disparate impact on employees 40 years and older. (See Smith v. City of Jackson, Miss., 544 U.S. 2280).

And just when we think we’ve got an idea about what to expect, we can’t forget to think about employees on the other end of the spectrum. Younger workers also believe they are getting the shaft.

• 14% of workers under age 25 believe they have been the victim of age discrimination (based on a survey of British employees)

What remains to be seen is whether their boomer parents — who love to make sure their children are treated fairly — will step in and sue on their behalf. (Straight-A student’s parents sue over F). It will certainly make for an interesting ride.

Savvy employers are taking note of age trends and starting to think long and hard about key practices and policies. Keep in mind that even if you don’t think you have an “age problem” you may be surprised. In many instances, employers may not even be aware that age discrimination lurks in their workplaces.

No matter where your workplace falls on the continuum, it makes sense to get ahead of this trend now. Make sure that your employees (and especially your managers) understand the organization’s position on age discrimination. Help managers understand that it’s not proper to make hiring, promotion, pay or other key decisions based on personal biases and stereotypical assumptions related to age.

How do you do this effectively and quickly? Training. Make sure that your harassment and EEO training programs cover this hot and evolving topic.

On Tuesday, March 27, California’s Fair Employment & Housing Commission (FEHC) met to adopt revisions to its AB 1825 regulations. These revisions were driven by the public commentary that followed the Commission’s February 27, 2007 version of the regs, which were designed to accommodate change requests from California’s Office of Administrative Law (OAL).

The OAL’s sole concern is the need for more clarity about who is actually qualified to create and/or present sexual harassment training programs, whether live or online.

In other words, who is a qualified expert under AB 1825?

The February 27 version of the regs made a distinction between “Subject Matter Experts” (those who know the content very well) and “trainers” (those who are, presumably, good at actually conducting a sexual harassment training session). The current draft eliminates the definition of Subject Matter Expert and moves the relevant qualifications to its definition of “trainer.”

“Trainer” is Now the Critical Definition A “Trainer is defined as:

(A) Attorneys admitted for two or more years to the bar of any state in the United States and whose practice includes employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964, or

(B) Human resource professionals with two or more years practical experience in one or more of the following: a) designing or conducting discrimination, retaliation and sexual harassment prevention training; b) responding to sexual harassment complaints or other discrimination complaints; c) conducting investigations of sexual harassment complaints; or d) advising employers or employees regarding discrimination, retaliation and sexual harassment prevention, or

(C) Professors and instructors in law schools, colleges or universities who have a post-graduate degree or California teaching credential and either 20 instruction hours or two or more years of experience in a law school, college or university teaching about employment law under the Fair Employment and Housing Act and/or Title VII of the federal Civil Rights Act of 1964.

An additional change to note is that the experience thresholds have been reduced slightly from the February 27 draft — from three years to two years, and from 25 instruction hours to 20.

Team Training Is Permitted:

The regulations then go on to say that individuals who do not meet these expertise criteria may “team teach with a trainer in classroom or webinar trainings provided that the trainer supervises these individuals and the trainer is available throughout the training to answer questions from training attendees.”

So you can still have a classroom trainer who is not an “expert” in harassment and discrimination prevention – but an expert does need to be with him/her, in real time, during the session. Most organizations doing classroom or webinar training, in all likelihood, will choose to have it conducted by someone with expertise in harassment and discrimination prevention and who meets the “trainer” defintion. It just seems far more effective and efficient.

So Many Versions of the AB 1825 Regs! Should I Care?

Given the repeated revisions, you might be asking yourself if you should even be paying attention to these sexual harassment training regulations until they are actually finalized. We absolutely recommend that you do.

The changes currently being made relate only to the issue of expertise. Frankly, any “good faith efforts” to comply with the text of the law (which is in effect – many of you have a December 31, 2007 deadline looming), should be tied to a program developed and/or delivered by true experts in sexual harassment prevention. As to the rest of the regs, while they may not be technically effective as of yet, they (a) represent basic good instructional design; and (b) are something you are going to have to contend with in any event, for many years to come.

You should be planning your sexual harassment training as an ongoing process, not a one time event. So what you use over the next few months before the regs become effective, is what you should be comfortable using further down the road, when these extensive regs are non-negotiable.

Stayed tuned to this blog for the latest updates on California, and beyond …o