Dan Schwartz: So what have you seen on elements that might be missing from training for managers that might come back to haunt them later in a lawsuit?
Nina Pirrotti: Okay. I’m going to, this is a great question, Dan, and I’m going to illustrate the importance of this issue with a couple of examples. First, I just want to start off by saying, obviously liability flows to the employer when the employer is on notice of the harm. Can’t do it if they had no means of knowing about it, that is either actual notice or even constructive notice. But if they don’t know, they’re not responsible.
So, supervisors need to receive an even heightened level of training on how to address workplace issues, because once the supervisor is on notic the employer begins to face liability, and that’s where the danger lies. So, the training has to not only elevate about what constitutes unlawful discrimination or harassment, but what the supervisor must do about it once it’s on notice of it.
So, I had a case where a client was sexually assaulted in a parking lot right outside the premises of her employment, and she went to a supervisor and her supervisor said, I’m so sorry, but that parking lot is not owned by our company. And so therefore, even though you were assaulted right outside by a coworker, there’s really nothing that we can do about it.
Okay? That was a seven-figure settlement, and it was just all bad training. The supervisor had the best of intentions. But he didn’t understand that if you’re sexually harassed by a coworker and it occurs while you are working remotely at home, or it occurs while you encounter him at a bar where you’re out with your friends or it occurs inside the premises that you work on, it is actionable.
It needs to be investigated. It needs to be an action needs to be taken. So that would be one example. I had another example where a client was sexually harassed and assaulted by her rainmaker boss, the big boss. She was a very low-level employee, and the response was, we are so sorry this happened to you, and it’s clear you’re not going to be comfortable here. And I really think what would be best is, let me give you the separation package. Look it’s a generous one. You really, you know what? I think you need to just leave because this is not a good environment for you to be in.
That was another huge settlement, and look at both of these examples, Dan. These supervisors weren’t bad people. They weren’t out to get my client. They were just poorly informed, and I’m sorry, but in that scenario, there is no difference as far as I’m concerned.
Now, they’re also just countless other well-meaning supervisors who simply don’t know that even if the survivor of sexual harassment is sexual assault particularly, but other forms of discrimination and harassment as well, even if the survivor asks for confidentiality. If the supervisor is concerned for that person’s safety or for the safety of other coworkers based upon the information that’s being reported to them, they cannot honor that request. They need to escalate that claim. There are so many examples of supervisors saying, I was just doing what she asked me to do.
Well, if she’s being stalked at work or he’s being subjected to vicious racial epithets that are being spewed by a coworker or supervisor, and you are not taking action this is potentially problematic for the employer, even though again, the intention is good. So, what are the hallmarks of good training?
Okay, I’m a big believer in live sexual harassment training. It could even be live virtually. That’s okay too. But the idea that an employer is going to, an employee in the privacy of his own space or her own space by herself is going to be on a monitor and if she on the monitor, pressing A, B, and C, and that’s going to be effective in terms of sexual harassment training. That’s just pure nonsense.
You need to have some sort of live training, ideally by a third party that’s being hired. But if you can’t afford that, it is not realistic for some, by your HR person. In the presence of all, let everyone participate from the CEO down to the person who’s cleaning the offices at night so that you are sending a message.
This is how seriously we take it. Everybody is subject to these rules and we have no exceptions. The other thing I’ll say is that bystander training is critically important. Think about it from the employer’s perspective because I always love the win-wins here. Bystander training of course, is good for my client because it protects them, right? Others are coming forward and speaking the truth about what’s happening to her because she’s too afraid to, she’s a single mom, she needs her job, she fears she’s beholden to this particular supervisor who’s has her career in his hands, et cetera.
A bystander comes forward. That’s a wonderful thing for my client, but it’s also fantastic for the employer because then you have all of these eyes and ears out there that are making sure that problems get nipped in the bud and are brought to your attention, and it has a chilling effect. If everyone knows this company really values bystander training, it sends a message to the putative wrongdoer that if she doesn’t report it, you know Joe Smith, who’s right next to me, might.
So, I love that. I love the bystander training approach being emphasized, prompt, thorough, objective investigations, making the credibility assessments, picking investigators who are trained, how to speak to survivors in a respectful, thoughtful manner. Treating the survivor with respect. All these things are so important as hallmarks to good investigations and to good training for supervisors who might oversee those investigations.
Dan Schwartz: It’s almost like you are an employment law attorney for companies, because I think a lot of that is things that we tend to preach, which is you can’t, as an employer, sit on your hands on this and hope that your employees get it right. You have to set them up for success here and I normally have one of my slides on the trainings that we provide, copies the old New York City transit warning, which is if you see something, say something. I think that really applies to the workplace and that is everyone has an obligation to report this type of behavior.
And then the company, once it gets that report, it’s on notice, but it has to take action about it. And if you combine those two, you’re setting yourself up for some success rather than just putting your hands over your ears and hoping things go well.
Nina Pirrotti: Absolutely.