Anti-harassment training following the Supreme Court’s Vance ruling

Want to convince managers to report harassment complaints swiftly?

Show them a video illustrating—in painful detail—what it’s like to sit through a deposition for a harassment lawsuit.

That’s among the training suggestions made by employment law experts now that the U.S. Supreme Court has weighed in on the circumstances under which an employee is a “supervisor” for purposes of vicarious employer liability under the Civil Rights Act of 1964.

“As soon as a manager learns of a potential situation, the manager needs to understand that he or she needs to act promptly,” said Katharine H. Parker, a partner with New York City-based Proskauer Rose, which counsels multinational corporations worldwide on employer policies and training. “If you show them a manager being cross-examined in a deposition or at trial, and being questioned about conduct they did or didn’t do, then it really comes home.”

In its June 24, 2013, ruling in Vance v. Ball State University, the high court held that a supervisor is someone with authority to take “tangible” employment action, such as hiring, firing, demoting, promoting, transferring or disciplining an employee. The court rejected a broader definition that included the ability and opportunity to direct, oversee or control an employee’s day-to-day work activities.

While the court’s definition of “supervisor” may have employers breathing easier than if the court had embraced the broader description, they should not become lax about providing anti-harassment training, said Elaine Herskowitz, principal at Potomac, Md.-based EEO Training & Consulting Services, which investigates employee complaints of harassment and discrimination. 

“I wouldn’t want people to get the message that ‘Oh well, if I don’t have authority to hire, fire or promote, there’s less concern about the employer’s liability for my actions,” said Herskowitz, a former senior staff attorney at the U.S. Equal Employment Opportunity Commission. “That’s a dangerous message. There still could be liability.”

While most companies conduct anti-harassment training of some sort, the quality of that training can depend on a company’s size and budget. Even in the largest of firms, Herskowitz said, some things slip through the cracks.

“Managers may think they can deal with the matter themselves, without involving higher-ups or HR,” she said. “Sometimes an employee might let a manager know about harassing conduct but ask the manager not to do anything about it yet. Even if the manager has attended training—where, hopefully, he got the message he has responsibility to take action—when the situation arises, many times managers feel the right thing to do is to honor the employee’s request. And that can get the employer in hot water if there is something serious going on. Down the line, this could be considered legal negligence.”

Among Parker’s and Herskowitz’s suggestions for improving anti-harassment training and generally strengthening anti-harassment policies:

• Make anti-harassment policies crystal clear. Such policies, Parker said, need to cover “sexual advances, requests for sexual favors, sexually charged banter, leering, inappropriate gestures, displays of graphic or offensive pictures, any jokes or banter about employees in protected classes, epithets, threatening behavior, behavior that excludes.”

• Get acknowledgment in writing. Require that employees acknowledge in writing that they’ve read the employer’s anti-harassment policy or gone through anti-harassment training.

• Encourage instant reporting. Herskowitz tells training participants, “Suppose an employee reveals to a supervisor that another worker is stealing, but the employee doesn’t want the supervisor to do anything right away. This example makes it clearer to managers that of course they have to take action. Potential harassment also violates the employer’s policies.”

• Use hypothetical scenarios to illustrate harassment. Live presentations and concrete examples are best, Parker and Herskowitz said. At least one example should cover what retaliation looks like and what to do about it.

• Keep it real. “It helps if the trainer can tell employees that the hypotheticals are based on cases that happened” recently, Parker said. “Often, people cannot believe … the type of language they’re hearing” or that language “so obviously discriminatory is still being used. But the fact is that some people still don’t understand how certain language or conduct can offend others.”

• Use multiple techniques. Part of the training could involve live actors or role-playing among participants. Sometimes written hypotheticals—or an open discussion about a case—are just as effective as videos. Consider giving a quiz at the end. Varying the format will keep employees interested, Herskowitz said.

• Consider the audience. “If it’s a corporate office, different hypotheticals will resonate better than for those working in restaurants or warehouses,” Parker said. Younger workers, she added, may respond best to training that illustrates harassment from their worldview. For instance, the training may feature actors that are their age or may demonstrate harassment through social media. 

• Reward openness. “One way of ensuring compliance is to reward good managerial conduct,” Parker said. For example, some companies’ performance evaluations grade managers on how well they foster a respectful, inclusive workplace.

• Consider a conversation. “I like to use role-playing to help employees understand they can nip problems in the bud simply by saying to the person who makes offensive remarks, ‘That joke you made offends me’ or ‘I would appreciate if you’d stop making these remarks,’ ” Herskowitz said. “Because this can be very scary to do, I’ll have pairs of people take both roles during training.”

Dana Wilkie is an online editor/manager for SHRM.