Walter M. Foster (left) is a partner with the law firm of Smith & Duggan LLP in Boston. He represents and advises both large government agencies and private employers on the problems of discrimination, harassment and retaliation.
Sarah E. Lent is an associate with the law firm of Smith & Duggan LLP in Boston. Her practice focuses on business and civil litigation.
With ever increasing regularity, the Massachusetts Commission Against Discrimination (MCAD), as part of its remedial orders, is ordering that respondents conduct training in addition to awarding monetary damages, including damages for emotional distress. Practitioners today can assist their clients in avoiding protracted litigation by providing the preventative medicine of contemporary anti-discrimination training.
Training as a legal requirement
G.L. c. 151B, ß 7 and ß 3A(c) require all Massachusetts employers to conspicuously post on their premises sexual harassment and anti-discrimination policies for the benefit of employees. Chapter 151B imposes more detailed requirements concerning the content and posting of sexual harassment policies and compliance procedures. Subsection (e) of 3A encourages employers to conduct education and training programs, for both new and current employees, and to provide additional training for supervisors and management-level employees. Although such training is not mandated by the statute, the intent to buttress any policy with training is clearly evident. Most companies have developed specific sexual harassment and anti-discrimination policies, but do not take the extra step to train their employees. This small investment of providing such training, however, can go a long way to creating a workplace free of harassment and discrimination while avoiding often draining and expensive litigation.
The growing trend of including training as a component to an MCAD remedial order recognizes that a paper policy is not sufficient to effectively combat charges of sexual harassment and discrimination. Without implementation and proper training, such paper policies will have no prophylactic effect whatsoever. Training not only makes good business sense, it also makes employers compliant with their legal obligations.
Although it is not yet an affirmative defense in Massachusetts state court, the adoption and implementation of an effective sexual harassment and anti-discrimination policy is an invaluable investment. The ability to present evidence at any MCAD hearing or trial that a company not only had anti-discrimination policies, but also took affirmative steps to implement its policies will go a long way to convincing the trier of fact of two important conclusions: first, that the company considers its sexual harassment and anti-discrimination policy a serious component of the work environment; second, punitive damages should not be considered as it is not a "bad actor."
In fact, within the last two years, the MCAD has frequently issued remedial orders requiring that employers conduct training sessions in the workplace. In one case, the MCAD ordered that the employer train all managers and supervisors in accordance with the various MCAD guidelines using MCAD certified trainers. Morgan v. BC Boston, LLP d/b/a Boston Mkt., 24 MDLR 45 (2002). Similarly, in Donohoe v. Sodexho-Marriot Servs., Inc., 21 MDLR 204 (1999), in addition to an award of damages, the MCAD ordered that the respondent's supervisors and employees attend a minimum of eight hours of anti-discrimination training.
Training sessions ordered by the MCAD must follow official MCAD guidelines and be presented by certified trainers who have attended the seminars sponsored by the MCAD. In some cases, the MCAD also has acted to ensure comprehensive training by ordering the respondent to actually submit its plan to conduct training about discrimination on the basis of race and national ancestry to the MCAD for review prior to implementation. Harley v. Costco Wholesale Corp., 23 MDLR 140 (2001).
Although the MCAD continues to order such training at the management level, the scope of these training sessions is usually focused on the protected class at issue in the underlying case. For example, in Proudy v. Trustees of Deerfield Acad., 23 MDLR 25 (2001), where the MCAD found that the employee was subject to sexual harassment by his supervisor, the MCAD ordered that the respondent take measures to ensure that its entire service staff receive training and instruction on the issue of sexual harassment in the workplace and that its employees understand and comply with G.L. c. 151B, ß 4 (16A). See also Sleeper v. N. E. Mut. Life Ins., 24 MDLR 55 (2002) (training mandated for managers and supervisors focusing on accommodation of disability); and McCarath v. The Elite Protective Servs., 24 MDLR 154 (2002) (mandated training of supervisors focusing on issue of race discrimination).
Practice tips for in-house training
Help your clients realize and maximize the value of training
Myriad options are available to employers to train their employees including in-person training, canned video presentations and, with the advent and immersion of the Internet, Web-based training. Companies can select options that range from off-the-shelf products to custom-made presentations that consider the company's particular culture and constitution. One option that minimizes costs is Web-based training that is designed to accommodate employers who operate around the clock or in a variety of locations that make it difficult or financially prohibitive to gather employees into one location for a training session. With a Web-based training program, employees are first required to take a pre-test, which measures their knowledge prior to the instruction. They are then led through a series of self-tutoring chapters involving role-play situations with a short exam at the end of each chapter. If an employee gets a certain percentage of the questions incorrect, they are automatically returned to the tutoring section of the chapter.
Upon successful completion of all chapters, they must take a final exam. At the end of the session, the user is provided a copy of the company's policy and the human resource manager is electronically provided with the results and a hard copy record that the employee completed the training. In this way, training can actually occur at any time of the day, in any location, even in the employee's home. An electronic record allows employers to accurately track who has been trained and to spot work areas or individuals that might need additional training and instruction. Of course, any training choice will be dictated by the employer's size, budget and time constraints.
Here are some of the issues to bear in mind in designing and implementing a training program for your clients:
• Limit training groups to 10 to 15 individuals.
• Do not mix managerial-level employees with "rank and file" employees.
• Know your client's corporate culture and the makeup of its workforce, e.g., gender, ethnic backgrounds, etc.
• Develop scenarios for role-playing exercises drawn from your client's corporate culture.
• Use current publicized cases and events to create role-play scenarios.
• Do not lecture! Design a participative program.
• Familiarize your client's employees with the written polices, including the process provided for the reporting and investigation of alleged discrimination with particular emphasis on the confidential nature of the investigatory process.
• Always be sure that your client's policy contains a statement of rights to redress under state and federal laws.
• Always inform managerial employees of the imposition of strict/vicarious liability and the possibility that any employee could be named individually by a complainant.
• Explain that a claim of retaliation is a separate ground for liability that can be found even if no discrimination occurs.
• Keep a record of each employee who participates in training and when. This information may prove useful in defending your client in the future.
• Ensure that your clients adhere to the requirements of G.L. c. 151B, ß 3A (2) by distributing a copy of their sexual harassment policy annually.
• Encourage your clients to take an active role in preventing expensive litigation by providing periodic training and education to its workforce.
How to minimize exposure
Employee training also may, in some circumstances, positively impact your clients' defensive position in litigation. While the availability of an affirmative defense is still under review in state court cases based upon an employee's failure to take advantage of the employer's anti-discrimination policies and procedures, those defenses are available to federal court litigants and should be asserted where factual support exists. See Faragher v. Boca Raton, 118 S.Ct. 2275 (1998); Burlington Indus., Inc. v. Ellerth, 118 S.Ct. 2257, 2270 (1998) (affirmative defense may be available if employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior (i.e. proof that employer fully promulgated an anti-harassment policy with an effective complaint procedure) and employee failed to take advantage of any preventative or corrective opportunities provided by the employer.)
Under federal law, however, not just any sexual harassment and anti-discrimination policy will suffice. A training program or policy that is insufficient will not give employers any such affirmative defense. For example, an employer that chose to simply distribute workplace policies, but had provided little or no employment law training was unable to assert this affirmative defense. See Ogden v. Wax Works, 214 F.3d 999, 1010 (8th Cir.) In fact, the recent trend is that employers must affirmatively establish that they have an active mechanism for renewing employees' awareness of their policies through either specific education programs or periodic re-dissemination or revision of written materials. See Romano v. U-Haul Int'l, 233 F.3d 655 (1st Cir. Me) (2000).
In order to assist your clients in both complying with the law and maintaining workplaces free of sexual harassment and discrimination, they should be encouraged to conduct training that takes the necessary step of effectively implementing their policies. The ounce of prevention could prove extremely valuable in light of the eventuality of a costly discrimination lawsuit.