Truth and Consequences: The Quandary of Employment References for Dangerous Former Employees

I have had the opportunity to help many companies, both large and small, develop and implement anti-discrimination programs and procedures, whether in hiring practices, in the workplace environment, or in sexual harassment prevention policies and training programs. These companies then seem to acquire a warm feeling that they have now insulated themselves from potential liability during a discrimination or sexual harassment complaint and/or lawsuit.

Once these policies are printed in their handbook, acknowledged by the employee, and displayed in some type of letter format alongside of the state and federal compliance posters, they are now confident that the potential problems are now either avoided or corrected.

In some cases they may be right. But, in others, I forewarn the companies that the policies are the easiest to develop and change, but that's only the beginning of compliance. The work environment is the intent of the compliance with the laws, and changing the environment is a difficult and sometimes long process.

Changing or at least modifying the work environment in most cases is “the weakest link” in discrimination and harassment prevention.

Training that focuses on learning instead of legalities will change employee behavior and reduce potential claims.

In several recent cases, the U.S. Supreme Court has articulated its mandate to employers: A policy prohibiting harassment and discrimination in the workplace not only is required, but must be clearly and effectively communicated to company managers and employees so that they both understand the policy and can apply it in practice. The latter is most important.

These cases make clear that companies must examine and re‑evaluate their entire approach to presenting this information. Providing proper training is vital to setting workplace cultural and legal standards, reducing claims, and eliminating punitive damage awards.

But there's a serious problem with most employment and workplace compliance training. Without realizing that the most important outcome is an impact on behavior, some companies simply pass out materials about discrimination, sexual harassment, or employment issues to employees; others conduct a single orientation session or give their employees limited exposure to information or training materials without any link to corporate culture, expectations, or standards.

Some companies focus on the law and attempt to make "legal experts" of their employees and managers rather than present training in a way that managers and employees understand and are able to apply in practice. These organizations are essentially assuming they have inoculated themselves legally and as a result feel that they are free of liability.

However, in the current legal environment, the failure to view training as a business issue rather than merely a compliance burden can leave companies vulnerable not only to significant financial risk but also to business consequences, including loss of productivity and poor employee morale. For an example, just look at Texaco, which settled race discrimination claims in 1996 for $176 million. This organization has now recognized the need for high-level attention to employment law and the need to treat issues of civility, legality, and behavior as boardroom-level issues from which their training flows. Unfortunately, this understanding came at a very high price.

To ensure that employees truly understand the intent of employment law is to regulate behavior at work—employers should focus on legal learning, rather than just the specifics of applicable laws. Organizations should begin with the premise that certain key principles are very important to convey, and legal learning means that these concepts must be communicated in a way that affects behavior on the job. This involves proper company leadership, information delivered in line with adult learning principles, and a plan and commitment to reinforce key learning principles.

A BUSINESS ISSUE

First, the top leaders or owners of an organization must recognize that adherence to the law and to behavioral standards in the workplace is as important as any other organizational initiative, such as sales or financials. Senior executives must elevate legal learning to the same level as other business issues that are regularly discussed in the boardroom, and recognize that failing to adhere to behavioral standards in the workplace is as risky as failing to properly serve the organization's customers in a service-oriented business such as ours.

Ironically, the same companies that conduct regular sales training sessions and performance reviews, make plans to prevent a new competitor from outflanking them, and invest in research and development fail to appreciate that maintaining legal standards of behavior requires the same kind of focus and commitment. Though the expense is far less, the benefits can be substantial, as Texaco again reminds us. The harm from illegal practices can rock a company's image, morale, productivity, and financial position.

Second, the senior executives of the company must set the example of appropriate behavior in the workplace and then must tactically deploy the necessary resources to communicate these standards effectively throughout the organization. Senior executives should include the issue in strategic discussions and make sure that it is on their personal list of business objectives. Every other serious business matter is regularly addressed in several formats. Compliance with employment laws must be treated in the same way.

Senior executives' behavior must match the message conveyed. Employees learn from leaders not only job skills but how to present themselves. If executives' own actions do not match their message to others, then the actual behavior is what will be believed and emulated. In most cases this is the main problem area in our organizations.

Consistent Message

How do you get people to behave in line with cultural standards, policies, and legal requirements? By focusing on learning rather than on legalities. To do that, companies should formulate a consistent message that all departments communicate in a variety of ways. Companies whose managers understand that sexual jokes and inquiries are not appropriate are in a stronger position than those whose managers can explain the affirmative defense set out in Faragher vs. Ellerth (Supreme Court case that established the need for a sexual harassment policy and the mechanism for reporting, investigating, and administering remedial disciplinary action if appropriate).

Whatever form the training takes, whether it is in front of a computer screen or in a classroom, it should be designed and its effectiveness measured by whether the instruction effectively communicated and changed standards of behavior. Just as any investment in equipment, advertising, or expertise is measured against results, the training or learning investment should be measured against such evidence as its impact on workplace behaviors, use of company HR systems and procedures, and complaints of discrimination or lawsuits.

Moreover, instruction should be evaluated by learning criteria such as these:

• Is it interactive and experiential (elements vital to adult learning)?

• Does it use a model designed to address specific behaviors?

• Does the learning design involve a variety of approaches to match the needs of different participants?

Finally, there is another issue just as important as learning methods. Some people would never tell a racial or sexual joke because they don't believe it's funny or appropriate in the workplace. But other people could spend hours in class being taught that discrimination, offensive jokes, and the like are not only wrong but also cruel and unkind, and they would never understand. Such individuals may never "get it."

Instead, these people need to "get" that it is against company policy for them to behave this way. They should be informed that they are required to respect this policy in the same way they are required to wear safety shoes in the mill. If they don't follow the rules, it could lead to personal liability and affect their job. You must communicate the inappropriate conduct to them immediately. Explain that the conduct is unacceptable and is against company policy, and that their failure to correct could result in some form of disciplinary action.

I find that one of the best motivators to deal with these types of individuals is to emphasize that, under current state and federal laws in addition to current case law, employees can be held individually liable for inappropriate conduct or communication—not just the company. In 2000, the typical judgment against an individual for creating an uncomfortable work environment was between $400,000 and $600,000 dollars. They usually reconsider their actions at this point.

Legal compliance requires the complete attention of the organization and all of its component parts. The strongest companies will make compliance with labor and employment laws part of their core principles and values and will use adult learning methods to demonstrate that adhering to appropriate workplace behavior is consistent with their mission statement. Once the leader in the organization is committed to the idea that behavior standards can be communicated and implemented through a strong, centralized learning effort, the risk of liability can and will be minimized.

About the author
Robert Palow is president of RP Consultants, a Placentia, CA based company that specializes in labor and employment practices. He has more than 30 years of management and legal experience in the human resource field.