Curbing Uncivil Behavior

“Defendant employers find themselves being questioned about the dollars spent on training, the qualifications of their trainers, the content of training programs, and the feedback and response by employees. Thus, the quality of an employer's program may considerably affect the settlement value of a case.”

When it comes to employment liability in the waste industry, a mere lawn bag of prevention could ward off a landfill of litigation.

Three decisions by the U.S. Supreme Court during the past few years have underscored the value of precautionary measures by employers in reducing the risk of liability and punitive damages under Title VII of the federal Civil Rights Act.

The rulings include Burlington Industries Inc. v. Ellerth, 524 U.S. 742; Faragher v. City of Boca Raton, 524 U.S. 775; and Kolstad v. American Dental Ass'n., 527 U.S. 526. These cases have effectively required all companies who do business in commerce with 15 or more employees to create and carry out programs to prevent, deter and address complaints of discrimination and harassment.

Simply put, no alternatives exist to having a workforce that knows and abides by anti-discrimination and anti-harassment policies and procedures. Such knowledge and behavior can be achieved through a carefully designed and implemented training program.

The Ellerth and Faragher decisions made it clear that an employer is automatically liable for a hostile work environment created by a supervisor if the situation leads to an overt employment action, such as termination, demotion or loss of a promotion.

However, even where no tangible employment action happens, an employer still may be responsible for a supervisor's harassment of a subordinate. To ward off liability, the employer must prove two things: first, that the employer was reasonably careful in attempting to prevent such incidents and that, upon discovery, promptly corrected the situation; and second, that the alleged victim unreasonably failed to make use of the preventive and corrective measures offered by the employer or to otherwise mitigate the alleged harm.

The Kolstad decision created a new standard for awarding punitive damages in Title VII cases. The high court ruled that a judge or jury may award punitive damages to an employee if the employer acted “with malice or reckless indifference” to federally protected rights. However, an employer could avoid punitive damages where the discriminatory conduct or actions were contrary to the employer's “good faith efforts” to comply with federal anti-discrimination laws.

The crucial step for an employer to avoid liability may be a matter of getting its ducks in a row. Employers must carefully fashion, publicize and implement an anti-discrimination and anti-harassment policy, which includes a complaint or grievance procedure.

A key part of implementation, according to the Equal Employment Opportunity Commission (EEOC), Washington, D.C., is providing training to ensure that employees understand their rights and responsibilities. Indeed, a number of courts have exonerated employers who showed “reasonable care” to prevent sexual, ethnic and religious harassment through their training programs. Similarly, a federal appeals court has held that merely adopting a policy is not enough. “[A] generalized policy of equality and respect for the individual does not demonstrate an implemented good faith policy of educating employees.” [EEOC v. Wal-Mart Stores, 187 F.3d 1241, 1248-49 (10th Cir. 1999)]

During depositions in federal discrimination and harassment lawsuits, defendant employers find themselves being questioned about the dollars spent on training, the qualifications of their trainers, the content of training programs, and the feedback and response by employees. Thus, the quality of an employer's program may considerably affect the settlement value of a case.

What are the elements of a top-notch training program?

For starters, translate the legal mumbo-jumbo into plain English (and any other language that gets the message across to the workforce). The program also needs to deliver the material in a user-friendly fashion so that the training experience is meaningful and memorable.

A responsible policy must address a host of issues beyond statements of zero-tolerance for discrimination and harassment. Employees need to know: how to report a complaint, including the availability of channels outside of an employee's chain of command; whether the statements of witnesses and alleged victims will be kept confidential; and how affected employees will be protected from retaliation. For their part, supervisors may require separate training for management-oriented elements of the policy such as how to interview for hiring and promotion, and how to manage on-the-job performance in a nondiscriminatory manner.

Ultimately, anti-discrimination and anti-harassment training must focus on creating a harmonious, respectful and productive workplace, which, incidentally, makes perfect sense for the bottom line.

For additional information concerning legal issues, visit www.wasteage.com.