Saturday, March 11, 2006
Orly Lobel (San Diego) over at PrawfBlawg has a fun, but also a somewhat serious, post, on the state of sexual harassment and diversity training in the corporate world, based on a recent episode of the NBC show "The Office" this past Thursday night. As a former sexual harassment and diversity trainer during my time with Morgan Lewis in Philadelphia, some of her observations really struck home.
For instance, Orly remarks about the ironies involved "with the near fetish eagerness of management to resolve tensions through a two hour catch-all session, ending with a mandated signature of all employees on a code of ethics promising to be a HERO [an acronym for honest, ethical, respectful and open-minded]." (I personally loved the character Dwight's response to the HERO acronym, saying that such a person was not a HERO since such a person did not kill people or avenge wronged individuals.)
On the serious side, and as Orly points out, such training is essential as a defense in a supervisor sexual harassment case given the affirmative defenses for employers set out by the Supreme Court in the Faragher and Ellerth cases. Training represents reasonable preventative measures employers can take and it is also unreasonable for an employee to fail to take advantage of such preventative opportunities.
Also, Orly has some worthwhile insights on the relative merit of "command-and-control" systems of management and "ex-ante cooperative prevention." I think she rightly points out that training alone is not enought to stop discriminatory and harassing behavior in the workplace. For a start, employers also need to have a no-nonsense sexual harassment and EEO policy as part of a handbook, which employees should expressly acknowledge by signing. Finally, when complaints are filed, by taking such complaints seriously, investigating them fully, and taking appropriate disciplinary action when necessary, employers can help assure that similar situations don't happen in the future.