Page 28 - BusinessWest March 4, 2024

Walking a Fine Line
How Anti-harassment Training in the Workplace Can Go Wrong
BY TREVOR BRICE, ESQ.
“Generally, anti-harassment training is a helpful addition the employer’s tool chest for preventive measures against discrimination and harassment.”
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 mea- sures is anti-harassment training courses for the work- force 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 discrim- ination 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 mea- sures 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 proce- dures 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 discus- sion in an educational environment about the influ- ence of discrimination, harassment, and retaliation within the workplace.
Anti-harassment training also makes for an open forum in which employees can learn basic concepts that will make for a safer and inclusive environ-
ment 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 train- ings, 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 inclu- sive 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 con- ferences or trainings that discussed racial issues in “essentialist and deterministic terms, ascribing nega- tive 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 detrimen- tally 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 per- vasive 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 dis- cussed 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 train- ing that led the court to conclude that the plaintiff’s
Harass
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