Workers in "The Twilight Zone" -- should you offer them harassment training?

Who should get harassment training, and why?

Executive Team? Of course. These are the leaders. If they don't set an example, then the company is in trouble. And it's hard for them to set an example if they don't know a little bit about workplace harassment and their responsibilities.

Managers? Of course.

HR? What, are you kidding?

Front line supervisors? Absolutely. These folks are the most likely members of management to receive complaints of harassment, or to observe situations in the work environment that could give rise to harassment claims. Front line supervisors will make or break the company's defense long before anyone in Human Resources -- much less a lawyer -- will be able to do anything about it.

Employees (non-management)? I vote yes. Although it's usually not essential (unless you are under a consent decree or other obligation to provide harassment training to non-management employees), I think it is a good idea to train all employees on the following: (1) the types of behavior that are likely to get them in trouble, (2) what they should do if they feel that they are harassed, or if they observe another employee's being harassed, and (3) that they never, ever, ever have to worry about retaliation if they come forward with a good-faith complaint of harassment. If you can't afford live training of non-management employees, then you can usually find an inexpensive video or interactive computer program that gets the point across. If that isn't possible, you should have a nice policy in plain, simple, everyday English (no legalese) explaining these three things to them, and someone should go over it with them point-by-point in orientation and periodically afterward. And document the fact that you did so, of course.

Wow. What an easy blog post that was! I'm done! Have a great weekend!

Oh, wait. I almost forgot. How about these folks?

Da Leads

Lead people. Team leaders. "Coordinators." Not quite management, not quite non-management. Those people in "The Twilight Zone."

"Employees from another dimension. Neither management nor non-management. You've just stepped into The Twilight Zone. Dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee-dee."

Here's the employer's dilemma: OK, we can train them, but then aren't we admitting that they're members of management and that we're liable for their mistakes? Or, OK, we will treat them like non-management, but if somebody complains to them, and they don't do anything about it because they don't know any better (because we never taught them what to do), then what happens?

This is a true story: In one of my very first-ever sexual harassment cases, the alleged victim and her alleged harasser both worked the graveyard shift. The company did not have any "true" members of management on duty at that ridiculous hour -- not a single supervisor. The only person responsible for anything at 3 in the morning was a lead man. (Not being sexist -- that is what they called them in those days. And he really was a male.)

According to the plaintiff, this lead man knew everything about what was going on. However, he never told management because nobody had ever explained to him the importance of doing so. So, of course, we had to argue to the court that he wasn't "management" -- because if he was management, our client would be likely to lose the case. The only trouble was, he was the only person responsible for anything at 3 in the morning. And he knew everything that was going on. Allegedly, anyway.

We were concerned enough that we settled the case before the court decided what his status was.

Years later, another client asked me to conduct management harassment training and told me, "We are going to include our lead people in the training even though we don't consider them 'management' because we want to be sure that they know what to do if they get a harassment complaint."

Gold star! It is true that by including lead people you may be indirectly "admitting" that your lead people are "supervisors" or at least quasi-supervisors. But, in my opinion, it is worth it. Because education is a good thing, and if they're solely or primarily responsible for what takes place under their watch, it is very possible that a court would find them to be "supervisors" (for reporting purposes) anyway.

"Hmph! What does she know?"

Glad you asked! Don't take my word for it. Look at this decision from the U.S. Court of Appeals for the Seventh Circuit (which hears appeals from federal courts in Illinois, Indiana, and Wisconsin). A guy reported same-sex harassment to his "yard leads," who allegedly did nothing about it. The guy ended up suing for harassment after he was fired for an unrelated reason, and he lost on the ground that he had never reported the harassment to "the company." At first. But he appealed, and the appeals court said that his case should go forward because by complaining to the "yard leads" he had, in effect, complained to the company.

So now the company will have to explain to a jury how it "knew" about the alleged harassment but didn't do anything to stop it. Ugh.

Da Temps

How about temps and other contingent workers? Of course, if you're the temp agency, you should have a harassment policy and make sure that the people you place understand our three points.

But what if you're the "customer" company? Should you trust the temp agency to adequately train these people, who will be spending up to 90 days in your building (because you would never keep them for more than 90 days at a time, right?), working side-by-side with your own employees 8-12 hours a day? And make sure that they do things your way while they're working for you?

Not really your employees, but not really not your employees. Temps are in Never-Never Land.

Of course, you have a dilemma similar to that with the lead people. If you make them get your harassment training, then aren't you admitting that they're your employees? Possibly. But if you don't, and then it turns out that your temp agency didn't do such a great job with its harassment training (many temp agencies do an excellent job, but not all), what happens when a temp is a victim while on assignment to you? Or when your employees become victims of the temp?

Again, reasonable minds can differ, but I lean strongly in favor of making sure that your temps also get your harassment training when they are placed with you. You don't have to admit that they're your employees -- you can take the position that you require anyone who is going to be on your premises working with your employees for extended periods of time to abide by your rules. Sort of a "when in Rome" thing. A court may or may not buy it, but I'd rather take that risk than risk having temps either suffer in silence -- or terrorize your employees.

Customers of temp agencies are frequently considered "joint employers" with the temp agencies. What that means is that both the temp agency and you, the customer, can be liable for harassment that takes place while the temp is on assignment in your workplace. And harassment claims involving temps are fairly common. They usually fall into one of these two categories:

1. A temp is victimized by one of your employees and is afraid to report it, knowing she's "just a temp" and thinking you will side with your regular employee if she makes waves.

2. A temp does not understand appropriate behavior (frequently because of language or culture) and harasses your own employees. We see this a lot with temps who are from cultures that have very traditional views of women in the workplace, or who have some animosity toward certain racial, ethnic, or religious groups.

Both of these situations can be remedied by harassment training for temps. Those in the first category need to know that you don't tolerate workplace harassment and will act on any substantiated complaints, regardless of the status of the complaining employee or the alleged harasser. (And about your policy of non-retaliation.) Those in the second category need to know that this is the way we treat each other and are expected to behave around here. This is Rome, and you're in Rome, dudes.

(Of course, if your temps are not fluent in English, you should have your training translated into the languages that they understand.)

Da Independent Contractors

How about them? I vote yes, if they spend a significant amount of time working with your employees or on your premises.

And, in conclusion . . .

So, yeah, I'm pretty big on harassment training for everybody, even folks who are in "The Twilight Zone" or "Never-Never Land." Employees (including your contingent workforce) need to know how to behave, how to complain, and that they won't be retaliated against. Management (including leads) need to know all that, too, plus what to do if they receive a complaint or observe anything that causes concern.

Wow. I got through an entire blog post on sexual harassment without mentioning Anthony Weiner! Oops. Guess I didn't.

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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