Don’t Let It Happen to You! Failure to Train Managers Creates Liability

Posted 12-08-2010

In a landmark decision, the California Fair Employment and Housing Commission has ruled that an employer can be found liable for failing to train mangers and otherwise take all reasonable steps to prevent harassment and discrimination in the workplace, even if there has been no illegal harassment or discrimination.

Ms. Williams was a paralegal at the Lyddan Law Group. Jeffrey Lyddan, the managing partner, made fun of an African-American file clerk’s ethnic name, referred to a modified Asian-built car as a “rice rocket”, commented that a black medical expert had “crazy” hair, called a Hispanic client’s family “wetbacks”, and circulated emails with racist, sexist, anti-Muslim, and anti-Semitic jokes and cartoons. Ms. Williams complained, but no investigation was ever done. The law firm did not have an employee handbook, and never did any employee or manager training on harassment or discrimination prevention.

Ms. Williams filed an administrative complaint with the California Department of Fair Employment and Housing, alleging racial, sexual, and religious harassment and discrimination. After a hearing, an administrative law judge found that, while Mr. Lyddan’s conduct was “in dubious taste”, “inadvisable and inappropriate” and that he had “exercised questionable judgment and lack of sensitivity to the ramifications of using ethnic slurs in the workplace”, it did not rise to the level of unlawful harassment or discrimination.

On appeal, the Fair Employment and Housing Commission agreed, and held that, even when there has been no illegal harassment or discrimination, it is “a specific unlawful employment practice…

[f]or an employer…to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” The Commission found that the firm should have had an effective policy on preventing harassment, should have investigated Ms. Williams’ complaint, and should have conducted harassment prevention training. It ordered Mr. Lyddan to attend sexual and racial harassment training, at his own expense. DFEH v. Lyddan Law Group, No. 10-04P, FEHC Precedential Decs. 2010.

What this means to you:

For more than 20 years, state and federal courts have been telling employers to train their managers on their responsibilities under state and federal harassment and discrimination law. In the past five years, California, Maine, and Connecticut have enacted statutes that require employers at larger companies to do anti-harassment training for managers. But there are still some employers, like the Lyddan Law Group, that just don’t get the importance of preventive law. Especially for a law firm, ignorance of the law is no excuse!

Don’t let your organization be like that or like the employer in Monteagudo v. Asociacion de Empleados del Estatdo Libre de Puerto Rico, 554 F.3d 164 (1st Cir. 2009), a 2009 sexual harassment case in which a jury awarded an employee nearly $1 million in compensatory and punitive damages. In affirming the punitive damages, the federal appeals court held that the employer could not show good faith compliance with the law, since it did not remind employers about its anti-harassment policy, did no training of its managers, and could not point to a single time when the policy had been followed successfully.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:37+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.