Walking a Fine Line
By Trevor Brice, Esq.
As Massachusetts employers know, one of the best defenses to a discrimination or retaliation suit is to implement preventive measures. One of the most commonplace of these preventive measures is anti-harassment training courses for the workforce that can show the employer is in compliance with state and federal law.
However, a recent case shows that this preventive measure, while it is virtually always a helpful addition to an employer’s preventive measures against discrimination and retaliation, can go too far if not managed or implemented properly.
Anti-harassment Training Can Benefit the Workplace
Generally, anti-harassment training is a helpful addition the employer’s tool chest for preventive measures against discrimination and harassment. It gives employees the tools to be able to identify situations in which employees are harassed, discriminated against, and/or retaliated against; identify the classes upon which discrimination, harassment, and retaliation are illegal; and utilize the employer’s reporting procedures to prevent further discrimination, harassment, and retaliation when it is identified.
When deployed properly, anti-harassment training has the effect of creating, at the very least, a discussion in an educational environment about the influence of discrimination, harassment, and retaliation within the workplace.
“Generally, anti-harassment training is a helpful addition the employer’s tool chest for preventive measures against discrimination and harassment.”
Anti-harassment training also makes for an open forum in which employees can learn basic concepts that will make for a safer and inclusive environment that will help to prevent illegal discrimination, harassment, and retaliation. The court in the recent case of De Piero v. Pennsylvania State University acknowledged the positives in anti-harassment trainings, stating that “training on concepts such as ‘white privilege,’ ‘white fragility,’ implicit bias, or critical race theory can contribute positively to nuanced, important conversations about how to form a healthy and inclusive working environment.”
Anti-harassment Training Can Create a Hostile Work Environment
However, the court in De Piero also pointed to a more novel concept, that anti-harassment training can make for a hostile work environment. The plaintiff in De Piero sued on the hostile work environment theory, stating that he had to attend at least five conferences or trainings that discussed racial issues in “essentialist and deterministic terms, ascribing negative traits to white people or white teachers without exception and as flowing inevitably from their race.”
In order to prove hostile work environment, the plaintiff had to prove that he suffered intentional discrimination because of his protected status; the discrimination was severe or pervasive, it detrimentally affected him, and it would detrimentally affect a reasonable person in like circumstances (Castleberry v. STI Grp.).
In this case, the defendant employer moved to dismiss the plaintiff’s complaint, stating that the anti-harassment training did not create a severe or pervasive work environment and that it did not interfere with the plaintiff’s work performance.
However, the plaintiff succeeded, with the court ruling that the plaintiff had pled sufficient facts to go forward with his hostile work environment claim. Specifically, the court stated that the plaintiff “was obligated to attend conferences or trainings that discussed racial issues in essentialist or deterministic term, ascribing negative traits to white people or white teachers without exception.”
The court pointed out a training in which the trainer in the anti-harassment conference forced the plaintiff and other white and non-Black people to hold their breath longer to feel pain. It is this and other examples from the defendant’s anti-harassment training that led the court to conclude that the plaintiff’s hostile work environment claim could survive.
Conclusion
While the De Piero decision points to how employers can have possible liability when implementing preventive measures, employers should not abandon anti-harassment training and other preventive measures. The court specifically stated that anti-harassment training can aid employers and that “discussing in an educational environment the influence of racism on our society does not violate federal law.”
The takeaway from the De Piero decision is therefore not to eliminate anti-harassment training, but to instead emphasize that the communication and substance of these trainings matter and that anti-harassment trainings can violate federal law if not implemented properly. If employers have questions or concerns about their anti-harassment training following this decision, it is prudent to contact employment counsel.
Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.
