Online Employment Discrimination and Sexual Harrassment Training

I recently received an email from my employer warning that I might be ineligible for coverage under its legal defense and indemnification policy unless I went online and completed two tutorials: one on sexual harassment and the other on employment discrimination.  I duly complied with this directive and then passed the online “mastery test” at the end of each tutorial.  This achievement is nothing to crow about, however, because my 10-year-old daughter passed the test without even taking the tutorial.  

I could use this directive from my employer as a leaping off point for several discussions, including (1) whether my institution should be shielded from vicarious liability because it took reasonable care to prevent harassing or discriminatory behavior, and (2) whether the tutorial I completed may have sought to “overcorrect” by describing as illegal behavior that is merely questionable.  But I will leave these weighty questions to colleagues who actually teach and write about employment discrimination.  Instead, I want to ask a more general question about whether we can reasonably expect much good to come from these online tutorials.   My own experience suggests no, primarily because the online format allowed me to dramatically disengage from the material.

CURSORY is the word that summarizes my approach to the tutorials.   The sexual harassment tutorial was supposed to take 30 minutes; I completed it in less than 10.  The employment discrimination tutorial was supposed to take 60 – 90 minutes, but in less than 25 I flew through web pages that summarized (hang onto your hats): Title VII, the Equal Pay Act, The Age Discrimination in Employment Act, the Americans With Disability Act, the Fair Labor Standards Acts, the Family Medical Leave Act, Executive Order 11246, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment & Re-employment Rights Act of 1994, the Jobs for Veterans Act, the New Jersey Division on Civil Rights, plus more.   I skimmed each individual page only long enough to insure that I wasn’t going to make an error that would send me back to the beginning.

My approach was hardly exemplary.  But I would bet that lots of other employees used similar strategies, particularly since my initial attitude toward the tutorials was pretty favorable.  Since I don’t know much about employment law, I thought I might learn something.   Plus, I was actually pleased to be able to log into the sexual harassment tutorial (which I did first) because it provided an excuse to procrastinate about some of the other work on my desk.   This relatively receptive attitude, however, went immediately south as I decided that almost anything was more appealing than reading page after page of what were essentially power point slides.  When I logged into the employment discrimination tutorial a week later, I had resolved to slow down because I was feeling guilty about how cavalier I had already been.  But once I was in the tutorial, all of this resolve disappeared instantly.  I just wanted to print my compliance certificate and be done.

What can employers who use such tutorials reasonably hope to accomplish?  It can’t really be about teaching the law, despite the number of different statutes the program summarized.   My breakneck speed assured that I would learn nothing and my 10-year-old’s passing grade suggests that many people will be able to intuit enough correct answers to successfully complete the “mastery test.”  One possible interpretation of her test score, of course, is that what employment discrimination laws prevent corresponds to most people’s sense of what’s fair.   But this doesn’t begin to explain why employees should work through 90-120 minutes of tutorials when many of them would have been able to demonstrate “mastery” from the outset.

Probably these tutorials are aimed at creating awareness among employees who are engaging in illegal or questionable behavior and among victims who may not realize that they can report discrimination or harassment.  As for the perpetrators, however, seeing yourself in the tutorial’s hypotheticals requires a level of self-awareness and humility that few actually possess.   Moreover—and critically in this context—such recognition also requires a level of engagement with the instructional material.  I’m hard-pressed to imagine how my employer could have more effectively facilitated my disengagement than to have me complete the tutorial alone on my computer, in a setting where I didn’t even have to feign attention.  Of course, victims are more likely than perpetrators to see a glimmer of themselves in the hypotheticals.  I imagine that if they engage long to see the glimmer, they will then slow down to figure out whether the laws and policies presented really do apply to their situation.  But a lack of awareness about what the rules are is only one reason why harassing or discriminatory conduct frequently goes unreported. 

All of this raises the question of what employers who care about creating comfortable workplaces should do.   When I complained about the online tutorials to one of my colleagues, he asked if I had ever been to a workplace training session conducted live and in person.   “Painful,” he said, shuddering slightly.  “And expensive,” I replied.   I don’t know how an employer can successfully raise awareness without breaking the bank, but online tutorials aren’t the answer.

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8 Responses

  1. Joe says:

    I don’t think they actually care about teaching you sexual harassment or discrimination laws except that they want to make sure they’re off the hook if anything at their place of business happens.

  2. Ken Rhodes says:

    Sarah, you wrote: “I want to ask a more general question about whether we can reasonably expect much good to come from these online tutorials. My own experience suggests no, primarily because the online format allowed me to dramatically disengage from the material.”

    Perhaps it was something else besides the online format that allowed you to disengage. Perhaps it was the fact that you’re not just an employee, you’re an attorney. Not just an attorney, a full professor of law.

    I think you underrate that type of PowerPoint presento for all the folks who have neither your background nor your intellect. I think for many such people, picking up a few pointers on how to avoid trouble is well worth the hour or two they spend.

  3. Alessandra says:

    If we were to broadly categorize types of sexual harassment, one such categorization might be the types of harassment (including, as you say, questionable behavior) that are perpetrated because the harasser is unaware of rules of conduct and behavior, and the kinds of harassment where the harasser knows what constitutes harassment, but doesn’t care.

    Information can has more chance of acting in preventive or educational ways towards the first type of harassment. It’s the same as informing people about security rules or even the laws they need to follow.

    On the other hand, if the harasser’s purpose is acting out the harassment because of reasons and motives other than being unaware of regulations or advice for conduct in professional environments, than the only thing the tutorial is going to do is to give more information to the harasser as to how they can still harass but do it in ways that are less likely to be proven, challenged or punished. I would think the majority of serious harassment behavior falls into this second category. (Not that I would argue this should be a reason for doing away with any educational program.) For the lighter types of harassment, though, it might vary, you could have lack of information and other motives.

    I also agree with both Joe and Ken above.

  4. I think it a bit unfair to say online tutorials can’t actually teach these sorts of topics in a meaningful way. At my previous job (before going back to law school) I actually used to make online trainings (one was actually on sexual harassment.) Now, I looked at a lot of different generic, uninteresting, and very expensive vendor options before deciding to make it myself — so I definitely know many of them are pretty bad. But, if your University invests in hiring a creative instructional designer, you can make them engaging and memorable.

    The difficulty with creating a training for a heterogenous population, though, is that people are just coming to the topics with such different levels of familiarity. So, if you’re forced (for budget reasons, etc.) to give the same training to a law professor as to, say, a recent college grad at their first job, you’re likely going to have a tough time making it equally engaging and useful to both.

    At my previous company the population was generally smart and competitive, so having (more) difficult questions was well received. But, even then, people would get a bit indignant when they got one wrong (and I know that because guess who got the emails about it…)

    Also, I don’t think most harassment trainings are trying to teach people “the law.” They are trying to minimize the risk that people do things that other people are likely to find sexually offensive. Is giving someone a back massage going to automatically equal sexual harassment? Is calling your friend down the hall “ancient” necessarily age discrimination? Well, no. But could it be? Well, sure. Good sexual harassment training just raises these scenarios so people start becoming more cognizant of what their actions can mean to others, with the hope that they’ll be more careful. It is, I think, one part “learn the laws” and quite a few parts “I want to make this work place productive and welcoming for my employees.”

    And I’m fairly sure that *can* be done with, albeit good, online training.

  5. Rick says:

    Look, the only reason companies do this sort of training is because the law says they have to do it if they want to have any chance of defending against a harassment/dsicriminataion lawsuit – (e.g. either he/she knew better than to do that sort of thing because we trained him/her; or he/she knew we had a policy prohibiting that stuff and should have reported it. Computerized training is just the fastest and cheapest way to do it; and the best way to keep a record to prove every employee did the training. Employees really don’t pay any attention to any of this stuff, they tune out just like Sarah; and nobody really cares.

  6. Ken Rhodes says:

    @Rick: Your cynicism causes you to make an overly broad generalization.

    “One of the reasons…?” Certainly. But “The only reason…?” Wrong.

    The following rewording of your first sentence applies to my company, and quite a few I did business with:

    “One of the reasons companies do this sort of training is that they know they need to do it to have a better chance of avoiding a harassment/discrimination lawsuit.”

  7. Rick says:

    Perhaps you’re right – time and experience will do that to you. I’ll give you 20%

    Most(note that I didn’t say “all”, I’m getting better) employee training is horribly boring and pedantic, and employees hate it because it keeps them from doing their job. Execs hate it because it is expensive non-productive employee time, except for the phophylactic benefit I mentioned originally. If that benefit went away tomorrow, I speculate that most non-production employee training would quickly whither away

  8. Anonymous Coward says:

    “Is giving someone a back massage going to automatically equal sexual harassment? Is calling your friend down the hall “ancient” necessarily age discrimination? Well, no. But could it be? Well, sure. Good sexual harassment training just raises these scenarios so people start becoming more cognizant of what their actions can mean to others, with the hope that they’ll be more careful.”

    If, as Rick suggests, a goal of the program is to CYA then this would fail that purpose.

    The basic problem is that you don’t want to assert that something is harassment if you might conceivably need to argue later that it isn’t, but neither do you want to say anything is not harassment that a plaintiff could non-trivially argue is and then have you on record certifying it as OK. In order to meet both of those requirements the questions have to avoid any sort of potential gray areas.

    Which is a long way of saying that a successful effort to CYA makes it practically impossible to actually impart any useful information.