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.