Have you conducted harassment training for your workforce? And guess what. If the answer is “no”, the EEOC will order you to do it. On their timeline and in their way. This is exactly what happened to the L.A. Fire Department recently. The EEOC just settled a case with them based on one employee’s complaint of sexual and religious harassment and retaliation. In addition to paying the employee just under $500,000, the Department must train its whole workforce. Wouldn’t it be better to determine the timing, content, and audience of harassment training, without the EEOC dictating every step of the way?
Do you hear the “H” word, harassment, thrown around loosely these days? Many of my clients do, and it’s a problem. I recently conducted a workplace investigation where an employee cried harassment. The “harassment,” it turned out, was based on the fact that the employee got a terrible performance review and was then placed on a PIP (performance improvement plan). Where’s the harassment, you ask? The employee is 100% positive that his performance is great. Anyone who thinks otherwise must be out to get him, de facto. Further, said manager must be committing illegal harassment. The employee truly believes this to be the case. Could he be right? Only if the bad review is not based on actual performance, but instead on a protected category, such as sex, race, national origin, religion, age, disability, etc. Otherwise, the manager’s conduct may be many things (e.g. appropriate, unfair, intelligent, stupid), but one thing it certainly is not is harassment.
When I conduct harassment training, my goal is to educate my audience on what constitutes harassment and how to avoid it. Just as important, though, is educating participants on what is not harassment. If you have not rolled out harassment training in the past couple of years, it’s time to revisit it. (More on that in an upcoming post). Make sure when you do, you include what harassment is not on the agenda.
Aside from your own personal goals (e.g., exercising more, reading more, drinking less, etc.), why not spend a few minutes thinking of a resolution or two for your professional life? Now that the festivities have died down, it is a good time to ponder some workplace goals for 2010. Here are our top five suggestions.
1. Set your 2010 training goals. As employment laws continue to evolve and expand (the ADA, FMLA, and GINA, to name a few that saw significant revision/passage in 2009), it is crucial that managers understand their new obligations under the laws. Bring in experts to provide educational, practical, and legally sound training. Maybe this is the year for a refresher on harassment training. Or maybe potential FLSA problems are something of concern. You don’t have to tackle everything at once. But sit down and make a realistic plan for 2010. Your lawyers will thank you.
2. Review your policies and procedures. If you don’t already have an employee handbook, invest in one specifically tailored to your business. Because there have been a lot of changes in the law in the last year, some of your policies may no longer be up-to-date. Don’t yet have a social media policy? It’s a great time to think about implementing one, as 2009 saw an enormous spike in the use of social media, and its intersection with the workplace has become profound.
3. Consider an HR Audit. Reviews of the HR function, or of compliance with significant employment laws, can bring a lot of bang for your buck. Determine whether investing in one now or at some later point in 2010 makes more sense for your organization.
4. Hear from your employees. Conducting an employee survey or using a less formal means of soliciting feedback can be incredibly illuminating and helpful in goal setting. Are your employees jonesing for some additional resources you could easily provide? Are they disgruntled about something you know nothing about? Just by asking the questions, you can easily pave the way to improved employee relations.
5. Take stock in your own management style. Is there room for growth? Keep in mind that great leaders do the following things exceptionally well: they set clear expectations, they provide continuous feedback, they accept blame for their mistakes, they are open to input, and they manage by keeping connected to their employees and understanding what they actually do (instead of managing remotely from their corner office). How do you measure up?
By taking a little time to think through and assess your goals, 2010 can be a great year!
Only a person who has personally engaged in a protected activity may bring a retaliation claim under Title VII of the Civil Rights Act of 1964, according to the Sixth Circuit’s recent decision in Thompson v. North American Stainless, No. 07-5040 (6th Cir. June 5, 2009). Under Title VII, employers are prohibited from retaliating against an employee who has opposed an unlawful employment practice or who has made a charge, testified, assisted or participated in an investigation, proceeding or hearing.
In Thompson, the plaintiff Eric Thompson claimed that he was fired as a result of his fiancé’s filing of an EEOC charge against their mutual employer. The EEOC issued a probable cause finding on Mr. Thompson’s own charge; however, the Sixth Circuit held definitively that the plain language of Title VII does not extend to associational retaliation claims. In so holding, the Sixth Circuit has protected employers from retaliation claims by friends, relatives, and close associates of the discrimination claimant.
Nevertheless, managers and supervisors must be trained on Title VII’s anti-retaliation provision, as those claims are common and costly. We consider it a critical component of our harassment, discrimination and performance management training programs.
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