HR Management & Compliance

Diversity Training: What Are the Legal Pitfalls of Diversity Training?

Our management wants me to implement some diversity training. I’ve talked to a number of vendors and colleagues. Some advocate a “touchy-feely” program that encourages participants to “open up” and honestly share their feelings. Frankly, I’m a little concerned about where this might lead—I’m not a trained facilitator or counselor. What recommendations do you have for organizations that want to initiate diversity programs without getting into legal hot water? — Marcus T., HR Specialist in Merced

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You are right to be concerned about the “touchy-feely” approach your vendors and colleagues advocate. Diversity training should not be viewed as a therapy session, encounter group, or other forum for employees to “let it all hang out” by airing private feelings. Rather, in general, training should focus on communicating appropriate workplace behaviors, and not on eliciting privately held attitudes about race, gender, or other protected characteristics. Although some diversity trainers still advocate this latter approach, it can generate significant legal risks.

For example, believing that it is important for people to confront their presumed racist or sexist feelings, some trainers encourage participants to articulate the biases and stereotypes they hold. These trainers may even encourage participants to take psychological tests to reveal their putative discriminatory attitudes. Although these methods may encourage an open and honest airing of views, the expressions of bias they elicit can ultimately create damning evidence in any later lawsuit.

Consider the California case of Stender v. Lucky Stores. As part of Lucky’s diversity training, a trainer asked managers to volunteer stereotypes of women and minorities that they had heard in the workplace. In response, managers volunteered statements such as, “Women won’t work late shifts because their husbands won’t let them,” and “Women don’t have much drive to get ahead. Women are not the breadwinners.” Human resources managers who attended the training took notes of these and other comments.

Subsequently, when female employees of Lucky filed a class action against the company alleging lack of promotions for women, the court ordered Lucky to turn over the notes of the managers’ comments.

Although Lucky strenuously argued that the notes were attorney-client privileged, the court rejected this argument, reasoning that the training was intended to train managers and not to facilitate the provision of legal services. Even more striking, in ruling against Lucky, the court stated that it viewed the notes as “evidence of discriminatory attitudes and stereotyping of women” by Lucky’s managers. Ultimately, the case settled for tens of millions of dollars.

In addition to diversity training methods that elicit stereotypes, approaches that shame or embarrass participants similarly can create legal risks. For instance, in one case, African-American employees alleged that a company’s diversity training created a hostile racial environment because it forced them to sit through a movie depicting lynchings in the Old South and subjected them to a questionnaire listing various stereotypes of minorities. The ostensible purpose of these exercises was to force Caucasian employees to confront their presumed racist beliefs. In another example of diversity training gone awry, a federal agency reportedly forced African-American and Caucasian employees to exchange racial epithets. And in yet another problematic case, employees were required to watch a diversity training film that used the “N” word.

The lesson in these cases is clear: Employers should avoid training that presents or encourages the exchange of patently offensive language or content or that creates experiences for participants that could reasonably be considered humiliating.

Finally, it should be noted that the conduct of top management relative to diversity training is especially important because senior managers’ attitudes set the “tone at the top.” Indeed, support from top management is widely viewed as one of the most important anti-discrimination “best practices” a company can adopt. Despite this conventional wisdom, it is still too common for busy top managers to skip training, or, worse yet, to display inappropriate or dismissive attitudes during the training they attend. Unfortunately, such conduct can undermine even the best-crafted company policies and create legal exposure. For example, a jury could conclude that a company’s anti-harassment policy is ineffective if a manager makes a crude comment following a training session.

To avoid these and similar pitfalls, employers might consider taking the following steps:

  • Vet prospective diversity trainers with care. It goes without saying that trainers should be persons with relevant legal expertise and knowledge of employer best practices for preventing harassment and discrimination. They should also be thoroughly familiar with the company’s policies and procedures relevant to harassment and discrimination.
  • Ask prospective trainers which methods they employ and whether they know about the potential legal risks associated with diversity training.
  • Ask to review any written materials in advance. If case studies are used, make sure they are not overly graphic or offensive, and consider stating “For discussion purposes only” or adding other such disclaimers to written materials.
  • Although the trainer should generally define what stereotypes are and how to avoid them, he or she should not explicitly chronicle offensive stereotypes of particular groups and should not permit participants to engage in a free-for-all discussion of the topic. Unfortunately, as there is no bright line between appropriate, educational discussion of stereotypes and content that may offend, the trainer must be someone who is able to handle such matters with tact and sensitivity.
  • Make sure the trainer sets appropriate ground rules for conduct during the training, including explaining the need for polite and respectful behavior during the session.
  • Make top managers and executives aware that diversity training is a matter of serious concern and inform them that, as company leaders, they are expected to fully participate in and support the messages of the training.
  • Make sure trainers address inappropriate comments or conduct that might arise during the training, such as by pointing out the impropriety of the comment or conduct.
  • If employees raise real-life situations during training, the employer may be on notice of potential harassment or discrimination. For that reason, trainers should be asked to report to HR any instances requiring intervention after the training.
  • If the training includes a test at the end for participants, be sure to follow up with additional training and retesting for any employee who flunks. If such an employee were later to engage in harassing conduct, an employer who didn’t follow up may have violated a duty to take reasonable steps to prevent the subsequent harassment from occurring.

In sum, although diversity training to prevent harassment and discrimination is important for any organization, it does carry certain legal risks that cannot be entirely eliminated. With proper care, however, employers can take steps to minimize the chances that their efforts will come back to bite them.

Lindsay Harris is senior counsel at Speer Associates/ Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.

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