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How Anti-harassment Training in the Workplace Can Go Wrong

March 6, 2024

Walking a Fine Line



By Trevor Brice, Esq.

As Massachusetts employers know, one of the best defenses to a discrimination or retaliation suit is to implement preventive measures. One of the most commonplace of these preventive measures is anti-harassment training courses for the workforce that can show the employer is in compliance with state and federal law.


However, a recent case shows that this preventive measure, while it is virtually always a helpful addition to an employer’s preventive measures against discrimination and retaliation, can go too far if not managed or implemented properly.

 

Anti-harassment Training Can Benefit the Workplace


Generally, anti-harassment training is a helpful addition the employer’s tool chest for preventive measures against discrimination and harassment. It gives employees the tools to be able to identify situations in which employees are harassed, discriminated against, and/or retaliated against; identify the classes upon which discrimination, harassment, and retaliation are illegal; and utilize the employer’s reporting procedures to prevent further discrimination, harassment, and retaliation when it is identified.


When deployed properly, anti-harassment training has the effect of creating, at the very least, a discussion in an educational environment about the influence of discrimination, harassment, and retaliation within the workplace.


Anti-harassment training also makes for an open forum in which employees can learn basic concepts that will make for a safer and inclusive environment that will help to prevent illegal discrimination, harassment, and retaliation. The court in the recent case of De Piero v. Pennsylvania State University acknowledged the positives in anti-harassment trainings, stating that “training on concepts such as ‘white privilege,’ ‘white fragility,’ implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment.”


Anti-harassment Training Can Create a Hostile Work Environment


However, the court in De Piero also pointed to a more novel concept, that anti-harassment training can make for a hostile work environment. The plaintiff in De Piero sued on the hostile work environment theory, stating that he had to attend at least five conferences or trainings that discussed racial issues in “essentialist and deterministic terms, ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race.”


In order to prove hostile work environment, the plaintiff had to prove that he suffered intentional discrimination because of his protected status; the discrimination was severe or pervasive, it detrimentally affected him, and it would detrimentally affect a reasonable person in like circumstances (Castleberry v. STI Grp.).


In this case, the defendant employer moved to dismiss the plaintiff’s complaint, stating that the anti-harassment training did not create a severe or pervasive work environment and that it did not interfere with the plaintiff’s work performance.


However, the plaintiff succeeded, with the court ruling that the plaintiff had pled sufficient facts to go forward with his hostile work environment claim. Specifically, the court stated that the plaintiff “was obligated to attend conferences or trainings that discussed racial issues in essentialist or deterministic term, ascribing negative traits to white people or white teachers without exception.”


The court pointed out a training in which the trainer in the anti-harassment conference forced the plaintiff and other white and non-Black people to hold their breath longer to feel pain. It is this and other examples from the defendant’s anti-harassment training that led the court to conclude that the plaintiff’s hostile work environment claim could survive.


Conclusion


While the De Piero decision points to how employers can have possible liability when implementing preventive measures, employers should not abandon anti-harassment training and other preventive measures. The court specifically stated that anti-harassment training can aid employers and that “discussing in an educational environment the influence of racism on our society does not violate federal law.”


The takeaway from the De Piero decision is therefore not to eliminate anti-harassment training, but to instead emphasize that the communication and substance of these trainings matter and that anti-harassment trainings can violate federal law if not implemented properly. If employers have questions or concerns about their anti-harassment training following this decision, it is prudent to contact employment counsel.


 This article was published in the most recent edition of BusinessWest. Click the link here.

EXECUTIVE ACTION AND ANTI-DISCRIMINATION LAWS: AN EMPLOYMENT CONUNDRUM

January 30, 2025
Recent executive orders, Defending Women From Gender Ideology Extremism and Restoring the Biological Truth to the Federal Government and Ending Illegal Discrimination and Restoring Merit-Based Opportunity signed by President Donald Trump, on January 20th and 21st, have caused a multitude of questions regarding anti-discriminatory policies in the workplace and how employers are expected to properly comply. Many of the questions raised are in relation to the fact that these executive orders (EOs) directly contradict federal anti-discrimination laws. How can employers comply with Title VII of the Civil Rights Act while also complying with executive orders prohibiting federal contractors from considering race, color, sex, sexual preference, religion, and national origin in ways that violate the nation’s civil rights laws? The verbiage of these recent executive orders has caused nationwide confusion. This confusion could land both private sector and federal employers in hot water if they utilize affirmative action or Diversity Equity Inclusion (DEI) Programs. As a result, countless employers across the nation are finding themselves with more questions than answers on how to properly comply. Royal Attorneys are here to help employers by providing guidance on what we know so far, what is still unanswered/ unclear how to proceed and action/policies to implement or revise for proper compliance in the meantime while we await clarification. What We Know: It is important to note that Executive Orders do not override legislation and anti-discrimination laws are still fully in effect. This means that the EOs did not affect the status of laws enacted by Congress which prohibits discrimination including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act, the Rehabilitation Act, Vietnam Era Veterans Readjustment Assistance Act, the Pregnancy Fairness Act, and the Americans with Disabilities Act. With these EOs, application and interpretations of these laws by many federal agencies may change. It is critical with these changes and shifts in agency interpretation that employers review handbooks and policies. An example that displays this change in interpretation and application can be found within the Equal Employment Opportunity Commission (EEOC). The EEOC has taken down from its website compliance sections regarding Guidance on Sexual Orientation and Gender Identity Discrimination for A pending review. The EEOC’s previous guidance is no longer consistent with the EO Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government, which exclusively acknowledges and narrows definitions to two-sex binary definitions. In general, agencies have been directed to no longer use the word ‘gender’ in policy and instead use the word ‘sex’ in its place. President Trump’s EO Ending Illegal Discrimination and Restoring Merit-Based Opportunity rescinded President Lyndon Johnson’s EO 11246, which he issued in September 1965. The former EO required federal contractors to take affirmative action regarding minorities and women. President Trump’s EO directs the Office of Federal Contract Compliance (OFFCP) to not allow or encourage federal agencies or contractors to engage in workforce balancing based on race, color, sex, sexual preference, religion or national origin effective immediately. Additionally, federal contractors are prohibited from considering these categories in any way that may violate civil rights laws. Additionally, Order 03-2025 was issued which applies to federal contractors under jurisdiction of the OFCCP who must now cease and desist all investigations and enforcement in violation of the EO 11246, and to notify all parties by January 31, 2025 of this change. What Employers Can Do: This brings to the forefront the question, “How do employers comply with anti-discrimination laws without DEI initiatives?”. Not all organizations want to comply with this EO. Many are doubling down on their DEI commitments. There is no current guidance to navigate and implement these changes. As we wait for guidance, there are a few things employers can do now. Handbook and policy reviews are vital Review DEI policies and practices in the workplace Assess whether to move forward with affirmative action plans and initiatives Assess applicant tracking systems and how information regarding women and minorities is utilized to determine discriminatory impact Assess how to best document employment decisions to show decision based on merit, rather than protected status Evaluate conflicts between applicable federal and state laws, including states laws which expressly protect gender identity and sexual orientation or require affirmative action The EEO standard has gone back to “equal opportunity” based on merit with President Trump’s Executive Orders. As a result, don’t be surprised if you see an increase in litigation regarding reverse discrimination and tension between states and federal government regarding EEO matters. Our Labor and Employment Attorneys are here for employers in drafting and revising employment policies and handbooks. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.

US Circuit Court rules that termination of unvaccinated worker is not a violation of Title VII

January 28, 2025
On January 17, 2025, the 1 st US Circuit Court of Appeals ruled that the termination of an employee for refusal to be vaccinated for the COVID-19, was not a violation of Title VII of the Civil Rights Act of 1964. The Plaintiff alleged that the Defendant’s failure to grant a religious exemption in relation to the COVID-19 vaccine was a violation of Title VII and would not have imposed any undue hardship on the employer. The Court found that there was undisputed evidence that the Defendant relied on objective medical evidence, including public health guidance from the federal government and Commonwealth of Massachusetts when it set its vaccine policy. There was no medical evidence to contradict the Defendant’s conclusion that vaccinated individuals are less likely to infect others. Thus, the court rejected the no-undue-hardship argument of the plaintiff. While the 1st Circuit denied Plaintiff’s religious accommodation claims in this case, the 1st Circuit specifically noted that this was a narrow ruling only in relation to the fact that the Defendant had relied on objective medical evidence in making its decision. Other religious accommodation claims in relation to the COVID-19 vaccine, therefore, might not be subject to dismissal given other factors. As such, it is prudent to contact counsel should a claim or allegation of religious accommodation in relation to the COVID-19 vaccine arise. If your business has any questions on this topic or any other matters, please do not hesitate to contact the attorneys at The Royal Law Firm at 413-586-2288.
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