By MATT CHANDLER
Buffalo Law Journal

Looking to trim expenses?

Be wary when cutting training programs that educate your staff about sexual harassment and diversity issues.

That's the advice from local attorneys and HR professionals who say when times are tough, the need for clear-cut, thorough training initiatives is more important than ever.

Lindy Korn is an attorney who specializes in representing plaintiffs in workplace discrimination and harassment cases. She says proper training may not only minimize the number of instances of harassment that occur, but it can reduce the potentially costly backlash once an associate has lodged a complaint.

"I see the most serious issue for risk management people in these companies to be retaliation. It is one of the most viable plaintiff claims that an employer should be worrying about," Korn said. "Training of management, supervisors on up, is absolutely critical to avoiding a retaliation claim. If someone knows you have filed a complaint, the reaction of management is often to strike back, to punish, to retaliate. It's that act that can cause them tremendous liability."

Robert Miller Jr. has spent nearly three decades working in human resources, the last eight as the owner of R.W. Miller Jr. & Associates. He provides businesses with the outsourced training sessions Korn believes are critical to protecting companies.

"Supervisors or managers in an organization are typically your biggest liabilities. They are the ones that are going to cause the harassment, they will discriminate, they will create the wrongful terminations. They are the ones that are going to get you in trouble," he said. "You've got to train them to what your expectations are, but you also need to impress upon them that they could have some personal liability in this."

With the state of the economy, Miller says he has seen more companies opting to forgo HR training sessions, a move he believes opens them up to potential costly litigation.

"When times are tough, you can't cut production, you need a certain number of employees, but things like training are seen as a cost, not something that makes money," he said. "So they are more likely to be cut out of the budget."

One local employer takes what it considers a unique approach to HR training for its employees. Maureen Hurley is executive vice president and chief administrative officer for Rich Products Corp. She says Rich's believes proper training begins with a culture that promotes a positive workplace.

"I know there are organizations that do regular training, but we try and stay away from pure classroom training because we have found, and most research has found, that it's not the best way for folks to learn," she said. "We see the best way to learn being through peer development opportunities, and that's how we approach our training."

Hurley said the company works to ingrain its culture in employees as early as the recruiting process, and she believes that approach directly reduces the number of harassment or discriminatory issues the company faces.

"There has to be a fundamental trust between the associate and the company," she says. "There has to be that openness and transparency in the corporate culture when it comes to handling these types of issues."

Richard Satterwhite counts Rich Products among his clients who were looking for a non-traditional approach to getting the message across to employees. Satterwhite is co-founder of Business Theatre Works LLC. An actor by trade, he now travels the country using his theatrical background to mirror real-life workplace situations for employees to see firsthand what their behavior may look like from the other side. He too has seen a "drastic" drop-off in demand for his services in the wake of the economic downturn.

"What we have seen is with the economy, a lot of companies trying to do it (training) in-house to keep the cost down," Satterwhite said. Like other professionals, Satterwhite says such an approach may save money in the short-term but could cost a company down the road in the form of a lawsuit. As for his company's approach to training, Satterwhite believes, like Hurley, that the classroom approach can be dry and sometimes less effective.

"Our approach actually brings the participants into the training," Satterwhite said. "You're drawn into the theatrical experience and we create these composite characters from your workforce and ideally you recognize something in those characters."

With companies cutting expenses, growing numbers are opting to forgo training sessions like Miller and Satterwhite provide. It's a move that leaves plaintiffs' attorneys, including Korn, scratching their heads.

"If you don't have a strong policy and you don't train people correctly, you are not going to be in as good of a position if a claim arises," she said

 

"Ten years ago someone might tell a joke that someone found inappropriate. Today, that joke can be forwarded to hundreds of people with a single click."
Rich Products vice president and chief administrative officer Maureen Hurley says with that in mind, her company revamped its policies and procedures to address the changing face of workplace harassment. No longer limited by proximity in the workplace, employees now have the ability to email and text (the latter leading to the latest HR buzz term "textual harassment") as well as utilize Facebook, Myspace, LinkedIn, and Twitter to cross the line from humor to harassment.
"We expect the same kind of behavior. It's just that the tools and methodologies have become a little more expansive and instantaneous," Hurley said.
Attorney Lindy Korn points to the easy access to pornography in the workplace as another technological factor that contributes to inappropriate behavior by employees. "The fact that it has become one of the most successful businesses on the Internet tells you that is what drives people," Korn said. "Those desires take over logic and people lose sight of appropriate boundaries because they want something. It is almost primal in the moment. They are thinking of pleasure."
The Internet watchdog site Safe Family Media reports that 20 percent of men surveyed admitted to viewing pornography at work. What may surprise some people is that the same study found that 13 percent of women have fessed up to viewing pornography on the job.
"As women move into higher positions in increasing numbers, sometimes they don't act any different than the men who hold those positions," Korn said.
Robert Miller Jr., owner of R.W. Miller & Associates, offers outsourced HR training to companies. He shared a story of an employee who went as far as to have a nude screensaver on his work computer. After female employees requested that it be removed and nothing was done, a complaint was filed and litigation ensued. Miller says it is a good example of an issue that wouldn't have been on the radar 15 years ago.
"From the technology side, it has made it so much easier for the employee to harass someone, and the young people are coming out of school with the mindset that that's OK," he said. "It's almost incumbent on employers to try to break that mind-set."