Diversity consultants want to get your managers to bare their true feelings about race, gender, and sexual preference. “That’s a very dangerous approach,” says today’s expert.
Beware of diversity training that’s really a therapy session, encounter group, or other forum for employees to “let it all hang out,” says attorney Lindsay Harris. Harris is senior counsel at Speer Associates/Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.
For example, believing that it is important to confront presumed racist or sexist feelings, some trainers are encouraging participants to articulate the biases and stereotypes they hold. While this may produce an honest airing of views, it can also create damning evidence in a lawsuit.
Consider the case of Stender v. Lucky Stores, 803 F. Supp. 259 (N.D. Cal. 1992). A diversity trainer asked managers to volunteer stereotypes of women and minorities that they’d 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.” HR managers took notes.
Managers of small HR departments have found the special help they need in a unique BLR product—Managing an HR Department of One. Examine it at no cost or risk for 30 days. Click for info.
When female employees later filed suit alleging lack of promotions for women, the court ordered Lucky to turn over the notes of the managers’ comments. When the court called the notes “evidence of discriminatory attitudes and stereotyping of women,” the case settled for tens of millions of dollars.
In general, Harris says, focus training on communicating appropriate workplace behaviors, and not on eliciting privately-held attitudes about race, gender, or other protected characteristics.
Shame and Embarrassment Also Risky
Approaches that shame or embarrass participants can create similar legal risks. For instance, in one case, a company got in legal hot water when African-American employees alleged that a company’s diversity training had created a hostile racial environment by forcing them to sit through a movie depicting lynchings in the Old South.
The lesson is clear, says Harris: 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 deemed humiliating.
Steps to Avoid Lawsuits
To avoid the legal pitfalls of diversity training, employers should consider the following steps:
– Ensure top management buy-in. Support from top management is very important, yet it is common for busy top managers to skip training or, worse, to display inappropriate or dismissive attitudes during the training.
– Check out prospective diversity trainers. Do they have legal expertise, knowledge of best practices, and familiarity with the company’s policies and procedures? What training methods do they employ? Are they aware of the potential legal risks?
– Review written materials in advance. Make sure case studies are not overly graphic or offensive, and consider adding “For discussion purposes only,” or other disclaimers to the materials.
– Set ground rules. While trainers should generally define what stereotypes are and how to avoid them, they should refrain from explicitly chronicling offensive stereotypes of particular groups, should not permit participants to engage in a free-for-all discussion, and should set appropriate ground rules for conduct, including explaining the need for polite and respectful behavior.
Feel like you’re all alone in HR? Take on a partner—Managing an HR Department of One. Examine at no cost or risk for 30 days. Click for info.
– Act if inappropriate situations are revealed. Make sure trainers address inappropriate comments or conduct that arises by pointing out its impropriety. If employees raise real-life situations, the employer may then be legally on notice of potential harassment or discrimination, so trainers should report to HR any instances requiring follow-up.
– Take care with testing. If you test participants, follow up with additional training and re-testing for any employee who flunks.
In sum, says Harris, although diversity training is important, it does carry certain legal risks that cannot be entirely eliminated. With proper care, employers can minimize the chances that their efforts will come back to bite them.