Margaret M. DiBianca, an attorney with Young Conaway Stargatt & Taylor, explains how employers can improve their anti-harassment training sessions for employees and pinpoints the Achilles' heel of most training sessions: a flat presentation that doesn't engage anyone. DiBianca also offers practical advice for employers on how to avoid retaliation claims.

In a recent survey conducted by a human resources consulting firm, 78 percent of employers reported that they provide anti-harassment training every year or every other year to their employees.

The sessions typically involve an equal employment opportunity (EEO) manager or director presenting an overview of the company's nondiscrimination and anti-harassment policies and how they apply to employee behavior in the workplace.

Bloomberg BNA: What are the factors and issues employers overlook when conducting anti-harassment training sessions?

DiBianca: More employers are implementing anti-harassment training programs in an effort to prevent unlawful and inappropriate conduct and as a defense to potential legal claims. Such programs are well advised, but like many good intentions, can backfire if not properly executed. 

One of the most frequently overlooked components of anti-harassment training is harassment based on factors other than sex. A legally effective training program will address all forms of unlawful harassment, including age, race, and disability-based harassment.

Bloomberg BNA: So what are the best practices for conducting anti-harassment training sessions for workers and managers?

DiBianca: There are several things to consider when implementing an anti-harassment training program. 

First, don't underestimate the critical role of the presenter. No one learns anything from a bad speaker. If the speaker isn't dynamic and energetic, the effort is wasted. Consider hiring a speaker from outside your organization to conduct the training--it is often money well spent.

Second, try to hold multiple sessions. This helps to ensure that everyone is able to attend and smaller groups are more conducive to discussions, which enables participants to take away something more relevant than a generic one-way lecture.

Third, consider HR's role. An HR representative should attend every session. The person should be present to answer any specific questions that may come up regarding the organizations' policy or reporting procedure, for example.

The HR person also is likely to gain some very helpful insight based on the way individuals interact and even from the questions that participants ask. 

This insight can be useful in identifying problems that may already exist as well as potential problems, including employees who ask inappropriate questions or seem to be unaffected by troubling hypotheticals that may be discussed.

Bloomberg BNA: The Equal Employment Opportunity Commission reports that retaliation charges continue to be the most frequently filed charges with the commission. Are there any particular challenges in litigating retaliation claims?

DiBianca: Retaliation claims are the most challenging to defend. There are many reasons for this. One is that retaliation is a reality. Fewer and fewer people have ever experienced race discrimination in the workplace, for example. 

However, there are few of us who haven't been the target or perpetrator of retaliation. If, for example, one of your subordinates reports to HR that you are the world's meanest boss: Are you more likely to take a mentoring role for that employee or more likely to give him or her the cold shoulder?  Most likely, the latter. 

In the courtroom, the same rule applies. Jurors can believe that an employee was the subject of retaliation much more easily than that employer engaged in unlawful discrimination based on race or religion, for example.

Bloomberg BNA: How does workplace bullying intersect with a claim of retaliation?

DiBianca: Bullying, in the traditional sense, is not per se unlawful and is not considered retaliation. There are risks, however, any time an employer regularly ignores unfair or unkind treatment of its employees. A bully supervisor, for example, may not be engaging in retaliation when he regularly yells at his direct reports. 

However, if that same supervisor is perceived to yell more frequently or more harshly at an employee who had previously complained that female employees were paid less, the supervisor is more likely to be subject to a retaliation claim. 

Put differently, employers who tolerate or worse, encourage, bullying in the workplace are far more likely to be charged with unlawful employment practices. And, because retaliation claims are the most commonly brought and the easiest to prove, they are the form that the claim will likely take.

Bloomberg BNA: Any final thoughts?

DiBianca: The single best tip I can offer to managers who want to avoid a claim of retaliation: Do not hide from the problem. Chronic complainers can overwhelm many well-intended supervisors.  Unfortunately, chronic complainers are the employees who are most likely to sue. 

As tempting as it may be to brush off the complaints of a chronic complainer, a manager should not fall victim to that trap. Instead, the manager should be proactive and tackle the problem head on. Follow up with the complainant regularly to ensure that the issue has been resolved.  

Finally the manager should document efforts and the response.  If the employee is reasonable, he or she will acknowledge that the complaint has been addressed. If the employee is unreasonable, the manager will have documentation that proves it. As difficult as it may seem at first, managers need to swallow their objections and take charge. That is what being a leader is all about.

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