Following the lead of the United States Supreme Court in Faragher v. City of Boca Raton, Burlington Industries v. Ellerth, and Kolstad v. American Dental Association, more and more courts are examining workplace policies and procedures to determine if the employer acted reasonably in undertaking measures to prevent and correct discrimination in a good faith effort to comply with Title VII. An important part of this examination focuses on whether the employer educated its employees regarding corporate anti-discrimination, anti-harassment, and anti-retaliation policies. Every employer should prepare, implement, and disseminate comprehensive policies, in particular policies against discrimination in any form, including harassment and retaliation.
In determining whether employers acted reasonably in discrimination and harassment cases, the courts examine whether the employer established policies and procedures prohibiting this type of conduct. It is not enough, however, to simply have a policy; this policy must be ìeffective.î For example, the courts have ruled that one requirement of an ìeffectiveî anti-harassment policy includes supervisory and employee training regarding sexual harassment. Indeed, one court ordered an employer to provide two hours of annual training and even specified what topics were to be included. Thus, employers who provide training to their employees and document these training efforts increase their chances of avoiding potential liability, including punitive damages, with evidence of the measures taken to prevent and correct discrimination.
Not only are the courts examining and evaluating employers' training efforts, the Equal Employment Opportunity Commission has issued guidelines regarding appropriate training. These guidelines state that, if feasible, employers should provide training to all employees to ensure that they understand their rights and responsibilities. Further, the guidelines explain that the employers' responsibility to exercise reasonable care to prevent and correct harassment includes instructing all supervisors and managers regarding the proper complaint procedures to follow when receiving employees' complaints. Finally, the guidelines set forth the specific elements the training should include: An explanation of the types of conduct that violate the employer's anti-harassment policy; the seriousness of the policy; the supervisor's responsibilities when receiving a complaint...