With a new wave of sex harassment complaints making headlines, there is also a bit of reflection that should happen at workplaces and the lawfirms that counsel them.

One area that we can evaluate is whether the training that is provided is effective.

A report yesterday from NPR concluded that training is just not working at many workplaces. 

The primary reason most harassment training fails is that both managers and workers regard it as a pro forma exercise aimed at limiting the employer’s legal liability.

For those of us who have been paying attention, this isn’t new.  I know that for the trainings I give, I try to have them be engaging with discussions of different fact scenarios being discussed.

But I’ve wondered whether we could be doing more.

Indeed, the EEOC issued a report last year highlighting the problems with existing training programs.

In its executive summary, it noted two big issues with the current model of training:

  • Training Must Change. Much of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top. Similarly, one size does not fit all: Training is most effective when tailored to the specific workforce and workplace, and to different cohorts of employees. Finally, when trained correctly, middle-managers and first-line supervisors in particular can be an employer’s most valuable resource in preventing and stopping harassment.
  • New and Different Approaches to Training Should Be Explored. We heard of several new models of training that may show promise for harassment training. “Bystander intervention training” – increasingly used to combat sexual violence on school campuses – empowers co-workers and gives them the tools to intervene when they witness harassing behavior, and may show promise for harassment prevention. Workplace “civility training” that does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment non-discrimination laws, but rather on promoting respect and civility in the workplace generally, likewise may offer solutions.”

Connecticut requires harassment training; I’ve talked about the requirements in some prior posts (check this one out from 2010, for example.)  But employers who have just gone through the motions, aren’t doing enough as we’ve now seen.

As we continue to work to eliminate sexual harassment in the workplace, having an effective policy is only part of the solution.

Making sure the training we provide to employees is helpful is obviously a part as well — and something that may have been overlooked in the past.

But finding that perfect solution to training still seems elusive.

If you’ve ever tried a case in federal or state court, you know that picking a “jury of your peers” is often a challenge for all.  Sometimes, otherwise qualified prospective jurors say that they have conflicts with their schedules, while others are all too happy to feel like they are participating in a Law & Order episode. (Lifted from a real-life experience.)

But there’s a bigger issue in play too — jury diversity.

What does it really mean to have a jury of our peers? And is jury diversity still an issue?

These will be among the issues that will be on the table in an “In Community” program that my law firm is producing on September 27, 2017 along with the George W. Crawford Black Bar Association.  I sit on the firm’s Diversity and Inclusion committee and have been among the people charged with pulling this together.  I’m excited to see this program come together.

You can find more information about the program here.

The panel includes:

  • The Honorable Victor A. Bolden, United States District Judge, District of Connecticut
  • Allison M. Near, Partner and Litigator, Sheehan, Reeve & Near, LLC
  • Edward P. Schwartz, Ph.D., Jury Consultant, DecisionQuest
  • Robert R. Simpson, Partner and Litigator, Shipman & Goodwin LLP
  • James W. Bergenn, Moderator, Partner and Litigator, Shipman & Goodwin LLP

For those that think the issue is one of the past, I need only point you to a September 5th concurring decision at the Appellate Court by Judge Douglas Lavine.

The case is a criminal one, State v. Holmes, but the notion that the process of peremptory challenges in picking juries is working smoothly is one that he takes issue with.

The U.S. Supreme Court’s decision in Batson years ago, which held that removing potential jury members is unconstitutional, only is the start of a solution, not the end point:

It is my view, however, that no amount of judicial diligence and oversight can remedy a problem that has become embedded in the Batson procedure itself unless that procedure is revised. I write separately because this case brings into sharp relief a serious flaw in the way Batson has been, and can be, applied. Batson is designed to prevent lawyers from peremptorily challenging prospective  jurors for manifestly improper reasons based on race, national origin, and the like.

It was not designed to permit prosecutors—and other lawyers—to challenge members of suspect classes solely because they hold widely shared beliefs within the prospective juror’s community that are based on life experiences.

This flaw is in plain sight for all to see and must be remedied if the jury selection process is to attain the goal of producing juries representing all of the communities in our state and gaining their confidence and trust. I believe a blatant flaw that significantly disadvantages black defendants—and people belonging to other suspect classes—has become part of the Batson process itself. I conclude that Connecticut should reform its jury selection process to eliminate the perverse way in which Batson has come to be used.

The panel discussion later this month will address these and other issues.

For employers, jury trials are becoming rare; but jury diversity is essential to ensuring that justice is administered fairly.  Ultimately, everyone involved in the system should be supportive of.

roadIf you had a million dollars (or more) to investigate your culture, what would you find out? (Music fans may appreciate the classic “If I Had a Million Dollars” song from the Barenaked Ladies. You’re welcome.)

Well, Uber engaged a lawfirm, Covington & Burling, and the former Attorney General Eric Holder to do just that — interviews with over 200 people, reviews of over 3 million documents — and discovered a lot.  It isn’t pretty.

Thankfully, the firm released its recommendations for all the world to see. In doing so, the report actually can serve as a bit of a road map of what to do at your company if you have some similar issues.  All for free.

You can and should review the report here.  There are some specifics that won’t be helpful — like allocating the responsibilities of the CEO.  But there are many others which show what the best practices are at companies in 2017.  Here are a few to get you started:

  • Use Performance Reviews to Hold Senior Leaders Accountable.  This recommendation is straightforward, but suggests that companies should have metrics that are tied to “improving diversity, responsiveness to employee complaints, employee satisfaction, and compliance.”  If you don’t hold senior leaders accountable, things will fall through the cracks.
  • Increase the Profile of [] Head of Diversity and the Efforts of His Organization.   This recommendation suggests something that may come as a surprise to some companies but reflects a growing shift in corporate culture, that is, that an “empowered senior leader who is responsible for diversity and inclusion is key to the integrity of” a company’s efforts.  Note the dual emphasis. As the report later explains, “It is equally important that the role address both diversity and inclusion. Diversity is generally viewed as focusing on the presence of diverse employees based on religion, race, age, sexual orientation, gender, and culture. Inclusion, on the other hand, focuses not just on the presence of diverse employees, but on the inclusion and engagement of such employees in all aspects of an organization’s operations.”
  • Human Resources Record-Keeping.  With the buzz about data, this recommendation reflections the growing wisdom that a company should have “appropriate tools, including complaint tracking software, to keep better track of complaints, personnel records and employee data.”  More than that, a company should “emphasize the importance of record-keeping to all Human Resources staff, and impose consequences for failure to adhere to record-keeping requirements.”  In other words, no longer should HR be viewed as secondary to a company’s mission. It’s front and center.
  • Training, Training, and Training.  I’m cheating a bit on this one because the report actually breaks down training at various levels, but the need for training is emphasized for senior leaders, HR staff, and managers.  And more than that, the company should also “require employees who routinely interview candidates…to undergo training on interviewing skills, conducting inclusive interviews and unconscious bias.”

There’s much more to the report, including additional suggestions specifically on diversity and inclusion efforts.   It’s a helpful roadmap for all companies.

 

From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz
From left, ADL General Counsel Steve Sheinberg, CHRO Deputy Director Cheryl Sharp, Shipman & Goodwin partners, Gabe Jiran and Daniel Schwartz

As I talked in yesterday’s post, I moderated a community forum on Religion and the Workplace at my firm. We had a terrific crowd and I’m grateful to all the speakers for making time out of their busy days to come.

I have posted on this blog before about some of things we talked about at the presentation — like how to provide accommodations to employees or addressing what is a “sincerely held” belief.

But Cheryl Sharp, Deputy Director of the CHRO, emphasized one point several times that I think is important for employers to understand.

Too often, she said, employers have policies that are not followed by their managers and employees.  Indeed, she said that when she gives training to companies, she is always surprised that employees tell her that they probably know only 10 percent of what the employee manual says!

While that’s an unscientific study of handbooks, Ms. Sharp’s point is that employers cannot simply have policies that sit on a shelf (or in a computer) anymore. Training your employees and educating them on what your policies say is critical.

Why?

Because Ms. Sharp said that inconsistency of application of a neutral employer policy can lead to discrimination.  And whether you or not you agree with that hypothesis is beside the point. The CHRO — the agency charged with investigating complaints of discrimination — is going to make that same conclusion.

If, for example, you have a policy that you are not to ask job applicants about accommodations until after a job offer is made — and your supervisor asks an applicant in a wheelchair that question before the offer is made — you’re going to have some explaining to do with the agency.

So, what’s the takeaway for employers?

Review your policies and make sure that the policy tracks the practice of your workplace. If it does, make sure to continue to provide training and education to your employees on those policies every year or two.  If it doesn’t, then you either need to modify your policy or your practice.

For more on handbooks, see my prior posts here and here.

templeAs I hinted at the beginning of the year, I expected topics relating to religion to take front and center this year. And certainly, the events of the first few months have supported that.

Today, I’ll be moderating a community forum at my firm, Shipman & Goodwin LLP, entitled “Gotta Have Faith? Religion in the Workplace”.  In this presentation, which is free and open to the public, we’ll talk about the latest legal developments, define what an employer’s obligations to provide accommodations are, address best practices for employers to follow, and share insights into what issues are likely to develop over the next few years.  There will be a Q&A following this panel discussion.

We have a terrific panel lined up of:

  • Steven Sheinberg, General Counsel, Anti-Defamation League
  • Cheryl Sharp, Deputy Director, Connecticut Commission on Human Rights and Opportunities
  • Gabe Jiran, Partner, Shipman & Goodwin LLP

It starts at 4 p.m. at our Hartford office. For full details, you can view them on Shipman & Goodwin’s website here.

The discussion is part of a our continuing “In Community” forum series, which has produced presentations focusing on a variety of issues facing our workforce and community. Other titles have included:

  • Working With the Deaf and Hard of Hearing Population: A Case Study Under the ADA
  • Race and Cultural Identity in the Working Environment
  • Understanding Gender Identity and Expression and Its Impact in the Workplace
  • Understanding Islam
  • “Not for Sale” – Combating Child Trafficking and Exploitation

We look forward to seeing you there this afternoon.

Among the things we take for granted now is that information about anything and everything has always been available.

(Indeed, if you want to really take a trip back in history, read this article about Time’s pick of the Personal Computer for its Man of the Year award in 1982.)

Google has been at the forefront of making information available and this week, it released another fascinating tool.

Google has taken the 500 billion words it has pulled from its Google Books project and made the data available to anyone here.  The New York Times has full details here.

So, for example, you can see that the usage of the word "Hartford" peaked around 1939 and has been dropping off ever since.

I thought it might be fun to look at a few employment law-related terms to see if any trends could be ascertained from 1920-2008.  The results are not scientific by any stretch, but it’s a fun exercise nonetheless.

So, for example, comparing the terms "Title VII" and "sexual harassment" shows that books referencing Title VII peaked in the late 1970s and have been declining since then. (See the first chart above.)

However, books referencing sexual harassment skyrocketed in the 1991-1992 time frame quickly passing Title VII in interest. But that phrase has also been in decline since peaking in the mid-to-late 1990s.

And what happened in the early 1990s to spark interest in "sexual harassment"? Why, the Anita Hill/Justice Thomas hearings.  

Or compare the use of the terms "overtime" and "labor unions" (reflected in the second chart).  You see peak usage of overtime in the mid-to-late 1940s.  

Similarly, you see "labor unions" usage peaking in the mid-1940s and a slow, steady decline after that point.   Given the decline in the influence of unions in the last several decades, it’s probably not a surprise that the use of the term has also declined.

Comparing terms like "diversity", "discrimination", "harassment", and "affirmative action" (the third chart) also shows a peak usage of all those terms in the late 1990s.  Interestingly, "diversity" overtook "discrimination" in 1993 in prevalence of use.   (I should note that it is unclear what the reasons for the decline are; the data merely shows trends from this set.)

Got your own suggestions of terms to search related to employment law? Post them in the comments below and let’s see if we can ascertain any additional trends from this data.  

Yesterday, I had seen some headlines at first about Attorney General Eric Holder’s comments discussing race, but had simply glossed over them. After all, it was a busy workday and well, was there going to be anything new?

But by late in the day, I received an e-mail from a former law professor of mine.  Listen to it, she implored, because it is a "fantastic" speech. 

Having listened to it, I have to agree; it’s great and the headlines about his "nation of cowards" remark do a disservice to the entire substance of his speech.  He may not have the same oratorical style as our new President, but the content of speech and the issues he discusses (and the manner in which he does so) are compelling.  If you don’t have 10-15 minutes, you can read the transcript but if you have a little time, you can watch the video below. 

The speech is directly relevant to today’s workplaces.  Indeed, Holder (whose background you can find here) is quick to point out that workplaces are doing better than most on addressing the issues of race.  Even still, there are limitations to that progress:

As a nation we have done a pretty good job in melding the races in the workplace. We work with one another, lunch together and, when the event is at the workplace during work hours or shortly thereafter, we socialize with one another fairly well, irrespective of race. And yet even this interaction operates within certain limitations. We know, by "American instinct" and by learned behavior, that certain subjects are off limits and that to explore them risks, at best embarrassment, and, at worst, the questioning of one’s character. And outside the workplace the situation is even more bleak in that there is almost no significant interaction between us. On Saturdays and Sundays America in the year 2009 does not, in some ways, differ significantly from the country that existed some fifty years ago. This is truly sad. Given all that we as a nation went through during the civil rights struggle it is hard for me to accept that the result of those efforts was to create an America that is more prosperous, more positively race conscious and yet is voluntarily socially segregated.

But Holder is not doom and gloom in his speech; rather, he suggests that discussing and learning about "Black History" and treating it simply the history of America, can help bridge the divide:

There is clearly a need at present for a device that focuses the attention of the country on the study of the history of its black citizens. But we must endeavor to integrate black history into our culture and into our curriculums in ways in which it has never occurred before so that the study of black history, and a recognition of the contributions of black Americans, become commonplace. Until that time, Black History Month must remain an important, vital concept. But we have to recognize that until black history is included in the standard curriculum in our schools and becomes a regular part of all our lives, it will be viewed as a novelty, relatively unimportant and not as weighty as so called "real" American history.

Several workplaces around the state take time to recognize Black History Month.  Holder’s comments would suggest that is a worthwhile endeavor, but ultimately, employers can play an important role in educating the workforce on the importance of diversity as well.  (Of course, treating employees fairly and with respect will continue to help build the bonds in the workplace.) If those actions are not taken, mistrust and bad feelings are left to fester and, in this economy, those feelings can gain traction fairly quickly. 

As Holder warns, " An unstudied, not discussed and ultimately misunderstood diversity can become a divisive force."

Employers would do well to consider Holder’s comments and determine if they should do more to emphasize the importance of broad diversity in the workplace and the role that everyone can play in doing so.  Holder’s comments do not serve to blame anyone for how we got to this point in history, but they do serve to provide a guide to where we from here.

Like countless others today, I’m back from vacation  — and looking to dig out from the mail and e-mails that have built up, and the unread blog posts over the last 10 days.

Avoiding the temptation to just "delete all", here are a few of the blog posts I’ve starred (you ARE using Google Reader, right?) that are worth reading to figure out what you’ve been missing over the holidays.

Pursuant to a new Rule published yesterday by the EEOC, employers can take Medicare into account when structuring retiree health benefit packages without violating the age discrimination laws. The rule clarifies the long standing practice of most companies that provide retiree health benefits, by which they reduce their health insurance expenses for retired workers once they turn 65 and qualify for Medicare. In other words, employers can lawfully spend more on retirees under the age of 65 years than those over 65 without running afoul of age discrimination laws.

As you can see, plenty of folks worked through the holidays to keep up on things. 

Now, if only everyday were a "Zero E-mail Friday".  

Best wishes in 2008.