“If you think the example is a little offensive, then put one hand up. If you think it is very offensive and definitely crosses a line, put two hands up. If you think it is acceptable behavior, keep your hands down.”
After reading these instructions, I discussed ten different workplace scenarios. Some examples involved clear-cut discrimination and overt sexual harassment. Others involved more nuanced name-calling and bullying. Still others involved various degrees of joking around and teasing.
This training exercise is always eye-opening because the number of hands in the air is never unanimous. As the participants shoot their hands up and look around the room, they are shocked when they realize that not everyone agrees with them.
The participants then explain their positions: “they were just joking around”; “they were both the same race”; “it only happened once”; “she went along with it”; “he wasn’t actually a member of that religion.”
If your organization is not performing similar training or implementing formal anti-discrimination policies, then here are four reasons why you should make this a priority in 2020.
Reason #1: Education Helps Prevent Workplace Misconduct
As the above exercise shows, employees are usually not aware of what conduct is prohibited in the workplace.
Most employees know that sexual harassment is wrong, but they are not aware of other types of discrimination.
Under the New Jersey Law Against Discrimination (N.J.S.A. 10:5-12), there are about twenty protected classes. Specifically, it is unlawful to subject people to discrimination or harassment based on:
- national origin
- sexual orientation
- gender identity or expression
- familial status
- marital status
- domestic partnership/civil union status
- military service
- atypical hereditary cellular or blood trait
- genetic information
An effective policy will prohibit discrimination and harassment based on all of these protected classes. It will make it clear that offensive jokes, name-calling, stereotyping, bullying, sexual harassment, inappropriate touching, and other forms discrimination will not be tolerated.
Effective training will discuss each protected class and will help delineate between proper conduct and improper conduct by reviewing the applicable laws and real examples from court decisions.
Educating employees, including supervisors and managers, is incredibly important in preventing discrimination and harassment in the workplace. It is an organization’s first line of defense from costly lawsuits.
Moreover, adopting a formal policy and implementing formal training communicates that management takes these matters seriously and is committed to eliminating this behavior from the workplace.
Reason #2: Education Reduces Frivolous Claims by Teaching What Does Not Constitute Discrimination
I have investigated a large number of claims of workplace discrimination and harassment, serving as an independent investigator and hearing officer.
In a significant number of these matters, employees claim that they have been subject to a harassment or a “hostile work environment” for reasons that do not actually rise to a legal violation.
For example, general rudeness or uncivil behavior that is not based on a protected class simply cannot constitute a “hostile work environment” under the law. If a supervisor micromanages or even annoys an employee, that also does not constitute a “hostile work environment”, harassment, or discrimination as long as it is unrelated to a protected class or other protected activity.
As New Jersey courts have held, an employee is entitled to a work environment free of harassment and discrimination; however, an employee is not entitled to a “perfect workplace,” free of annoyances and colleagues that may be disagreeable.
I have found that teaching what does not constitute harassment and discrimination is just as important as teaching what does constitute harassment and discrimination. Employees who know the difference will be less likely to make complaints about conduct that simply is not illegal, thereby avoiding unnecessary and sometimes costly investigations by the employer.
Reason #3: Formal Reporting Procedures Can Stop Illegal Conduct Before It Becomes a Bigger Problem
Educating employees about discrimination and harassment is meaningless unless the employer also establishes reporting procedures and complaint structures. Employees who don’t know how to report a problem, can’t report a problem, and so the conduct will continue and become a bigger problem. This is why it is important for employees to know what to do and who to go to if they need help.
When a problem is reported early, the employer can intervene quickly, impose any necessary discipline, and monitor the situation to prevent it from escalating.
Additionally, an employer with effective reporting procedures can later defend against a lawsuit by showing that the employee failed to take advantage of the procedures that were put in place.
Reason #4: Policies and Training Provide the Employer with an Affirmative Defense
Anti-discrimination policies and training are conducive to a healthy work environment.
They can also provide the employer with a strong affirmative defense if an employee does decide to bring a lawsuit against the organization and/or its management.
Usually when a lawsuit is filed, the plaintiff alleges that he or she was discriminated against by a supervisor or fellow employee. Usually the employer (public entity or business organization) is also included in such a lawsuit on the theory that it negligently failed to prevent the behavior.
In Aguas v. State, 220 N.J. 494 (2015), the New Jersey Supreme Court held that an employer’s anti-harassment policy is central to the determination of a plaintiff’s claim against the employer.
In particular, the Court established five factors which are relevant to whether the employer acted negligently in failing to establish an anti-harassment policy:
- formal policies prohibiting harassment in the workplace;
- complaint structures for employees’ use, both formal and informal in nature;
- anti-harassment training, which must be mandatory for supervisors and managers, and must be available to all employees of the organization;
- the existence of effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and
- an unequivocal commitment from the highest levels of the employer that harassment would not be tolerated, and demonstration of that policy commitment by consistent practice.
If the employer implements such policies and training before any discriminatory conduct occurs, then the employer may be able to prevail on summary judgment, which means that the case could be dismissed before it proceeds to a lengthy and costly trial.
A good example of such an outcome is the case of Hobson v. Tremmel, A-0359-14T4, 2015 WL 5884868 (App. Div. 2015). There, the employer adopted a formal policy prohibiting workplace harassment, implemented a well-defined complaint procedure, and had a comprehensive training program for employees.
As soon as an incident occurred, the plaintiff followed the complaint procedure by reporting the illegal conduct to her supervisors. These supervisors were able to promptly intervene by ordering that the harassing employee have no further contact with the plaintiff, referring the matter to police, and conducting its own independent investigation. Accordingly, the court dismissed the complaint against the employer.
A similar result was reached in Musto v. New Jersey Dep’t of Corr., A-1572-14T3, 2016 WL 3434410 (App. Div. 2016) because the employer had a policy prohibiting discrimination in the workplace, distributed it to all employees, trained new employees on the policy, and provided regular refresher training to all other employees. Moreover, the employer promptly responded to the complaint, imposing discipline for the offensive conduct.
Contact Florio Kenny Raval, LLP for Assistance
Our firm has significant experience in prosecuting and defending employment law cases in the Superior Court of New Jersey and United States District Court for the District of New Jersey.
This experience helps us draft effective anti-discrimination policies for public entities and private businesses. These are typically included in an employee handbook, which can include other beneficial provisions, and which can be custom-tailored for your operational needs.
Our firm also routinely provides anti-discrimination training, which is conducted in an engaging and interactive manner.
Please contact our firm today if your organization needs assistance with its anti-discrimination policies and training.