Establishing an Effective Training Program for
Administrators, Faculty and Staff
Bonnie Weisman, Esq.
Manager of Employment Services, University of Houston-Downtown
Consultant, Employment Practices Solutions
Sandra McMullan Liggett, Esq.
General Counsel and Vice Chancellor for Human Resources
North Harris Montgomery Community College District
Why You Should Have A Training Program
1. Required by Law: Some states mandate training. For example, Texas requires
that all new state employees undergo training in employment discrimination laws,
including sexual harassment, within the first 30 days of hire and every two years
afterwards. (Texas Labor Code Section 21.010-Texas Commission on Human
Rights Act). In addition, the Texas Commission on Human Rights (TCHR) is
conducting an audit of all the universities in the State of Texas for compliance
with their training requirement.
2. Proactive: You should train your management employees on the laws and
appropriate responses to build confidence and increase the likelihood that they
will make decisions that will be legally defensible.
3. Satisfy affirmative defense set forth in Faragher v. City of Boca Raton, 524 U.S.
775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998).
a. Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001)
(company’s policy and mandatory sexual harassment training “were
sufficient to show it exercised reasonable care to prevent sexual
harassment in its restaurants”).
b. Cadena v. The Pacesetter Corporation, 224 F. 3d 1203 (10th Cir. 2000)
Evidence presented at trial that company did not make good faith effort to
educate employees about sexual harassment undermined its defense. In
this case the manager responsible for harassment training did not conduct
monthly training as she testified she had and the court found her to be
“ignorant about sexual harassment” when she admitted that “she believed
that a male supervisor would not commit sexual harassment if he exposed
his genitalia to a female subordinate or grabbed her breasts, so long as he
apologized after the incident.”
c. EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001) Company’s
failure to exercise reasonable care demonstrated by employees’ testimony
that they were unaware of a sexual harassment policy and the site
superintendent’s testimony that he had not received harassment training
despite company policy that mandated such training.
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d. Miller v. Zee’s Inc., 31 F.Supp.2d 792, 803 (D. Or. 1998). In a lawsuit
alleging gender discrimination and harassment by a waitress at Denny’s,
the failure of the company to distribute the sexual harassment policy to
managers and to conduct training in sensitivity, diversity and the handling
of sexual harassment were among the reasons for the holding the company
liable.
e. Hurley v. Atlantic City Police Department, 174 F.3d 95(3rd Cir. 1999), cert
den. 120 S.Ct. 786 (2000) “Ellerth and Faragher do not, as the defendants
seem to assume, focus mechanically on the formal existence of a
harassment policy, allowing an absolute defense to a hostile work
environment claim whenever the employer can point to an anti-harassment
policy of some sort”. Jury instructed to consider the existence of “a
widely disseminated anti-harassment policy or a well-publicized and an
effective formal or informal complaint structure, training or monitoring
mechanisms”.
f. Baty v. Willamette Inc. 172 F. 3d 1232 The company had a written policy
prohibiting sexual harassment, although the plaintiff and other employees
testified that they never saw it, or received training on it, until after a
complaint had been made. Supervisors testified that that they had "never
received any training on how to investigate a complaint of sexual
harassment" until after the complaints of the plaintiff and that even after
the sexual harassment training, they did not understand what sexual
harassment was or how to investigate. Testimony indicating that the
policy was posted on a bulletin board in the factory and that compliance
manual including information about the sexual harassment policy was
distributed at a voluntary all-plant meeting prior to the complaint was not
adequate to prevent the imposition of punitive damages.
Design of Civil Rights Training
1. Forms of Civil Rights Training at NHMCCD
a. New employee training
i. All new employees must attend a 2 ½ hour program on civil rights
conducted by the Director of Employment Services
ii. Course content
1. District process to complain/investigate/solve
2. Diversity as an institutional value
3. Forms of discrimination
a. Sexual Harassment
b. Other forms of Harassment
c. Discrimination on the basis of disability
d. Religious discrimination has been a strong emphasis
e. Unequal treatment
4. Retaliation -- a true emphasis
5. NHMCCD’s Ethics policy
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a. The ethics policy is broader than Title VII, Title IX,
ADA/Section 504 training.
“Respect for the
individual”,”harassment” that is not directed at the
employee’s race, gender, disability, etc.
b. Procedures issued interpreting the ethics policy
prohibits consensual relations between employees
and any person over whom the employee has
decision-making authority.
6. Last ½ hour is reserved for supervisors and goes into more
details about:
a. Retaliation in the workplace after a complaint has
been brought
b. Supervisor responsibilities to attend to the
workplace and to respond promptly when problems
arise/
c. Responsibility to bringing problems to the attention
of the Civil Rights Administrator.
iii. Format of New Employee Training
1. Quiz (not handed in, used as a beginning exercise and a
review tool)
2. Short scenarios (examples) is the primary teaching tool
with little lecture
3. Video tape on sexual harassment that is paused to discuss
scenarios.
iv. Assuring Attendance
1. If a new employee does not attend, HR sends an email to
the president and supervisor, who will communicate and
require the employee to attend the next training program.
Have not had a problem with attendance.
2. Everyone in the District is notified of the training;
approximately 20% of the attendees are employees who are
not new but want to attend (including many members of the
faculty)!
b. Supervisors and managers – annually (mandatory)
i. Supervisor/manager training is a two session training program (each
approximately 4 hours duration), the first of which walks
supervisors/managers through key policies and procedures. General
Counsel addresses the civil rights complaint process and the role of the
supervisor.
ii. The second day of supervisor training (approximately 4 hours) is built
around scenarios, several of which have a civil rights component.
1. Two presenters, Director of Employee Services and
consultant (Bonnie Weisman).
2. The program is interactive, with role playing between the
two presenters and active participant involvement.
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3. Academic administrators (Deans, department chairs) have
an additional four hour training program, elements of
which focus on civil rights.
a. Uses case studies that focus on faculty and student
circumstances
b. One of the unique elements of this program is
adjunct hiring, which is much more informal than
full-time faculty.
c. Police
i. Civil rights training for law enforcement officers is mandatory to
maintain their license in Texas.
ii. In addition to the requirements established by the State, the District
Director for Public Safety conducts periodic civil rights training
programs for police.
1. This training is mandatory. There are occasionally problems
getting part-time police officers to this training.
2. Training is often held on Saturdays for new officers.
3. Content includes diversity training, racial profiling, and
referring matters to the Civil Rights Administrator.
d. Search Committee Training
i. Everyone who serves on a search committee is required to undergo
training on conducting a search in compliance with the civil rights
laws. If a committee member does not attend, he or she cannot
participate.
ii. The emphasis is on selecting candidates for interview, the conduct of
the interview (questions to ask, not to ask), and reference checking
iii. Training is prepared by director of employment services, but
conducted by the one of five members of the human resources staff.
e. People in Positions with Responsibilities for Civil Rights Enforcement
i. Civil Rights Administrators
1. The administrators who are responsible to receive/investigate
civil rights complaints (Civil Rights Administrators) receive
training at least three times per year. Usually the programs last
approximately 4 hours each and include outside attorneys,
external civil rights investigators, and General Counsel.
2. Topics stressed:
a. Investigative processes – how to collect information,
how much is enough, interview techniques, taking notes
and maintaining records, use of external civil rights
investigators
b. Weighing information and making judgments and
factual decisions based on information
c. Dealing with difficult people
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d. Changes or clarifications in law in key areas of
discrimination
e. Writing up a good report
f. Confidentiality, open records, and communications
with complainant/person complained about/witnesses.
3. The office of the general counsel funds the attendance of
CRAs at external conferences where civil rights
investigation is an important component.
ii. Train the Trainer
1. Outside persons who will participate in the civil rights
process (referred to external investigators in our system)
and outside persons who will do training for us are trained
as well.
2. All people who are on the human resources staff are trained
in the policies and procedures, both to assist them to
conduct training on hiring practices and to advise persons
who want to understand the process.
iii. CEO and executive officers (presidents and CEO’s)
1. Annually general counsel conducts training in a session of
NHMCCD’s executive council (consisting of chancellor, five
presidents, and five vice chancellors).
2. General Counsel and outside counsel are both presenters and
prepare written materials concentrating on the process and
personal and institutional liability concerns.
3. Each member signs am attendance sheet.
iv. Board members
1. General Counsel conducted training for board members when
we adopted a new civil rights policy. We intend to repeat the
program since two new Board members were elected this year.
2. Program length is shorter (approximately 35 minutes) and
focuses on Board member responsibilities (primarily relating to
the conduct of appeals to the Board) and liability concerns for
Board members and the institution.
f. Post Investigation Training Is Required When Lack of Knowledge of the
Policies and Procedures is Identified
i. Brought in Bilingual trainer for custodial/maintenance/food service
workers after an investigation.
ii. Required a police department to have top to bottom training after a
hostile environment was brought forward and identified practices
in the department
iii. Two individuals were required to attend training after conclusion
of discriminatory conduct – condition of maintaining employment
1. Police chief and hostile environment claim
2. Faculty member after student ADA complaint sustained
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2. Optional Training Programs
a. By request of a department of unit
b. Conference Day
c. Faculty Senate
3. Techniques we have found important
a. Get buy-in from the highest level of institutional leadership and a
commitment by each to introduce and attend programs. This assists in the
consequences for non-attendance at mandatory training.
b. Scheduling of programs in Spanish, particularly for food service workers
and custodians, and announce the availability of interpreters and other
accommodations to permit the full participation of persons with
disabilities.
c. Make it fun and use of several forms of teaching, with an emphasis on the
use of videos, scenarios and role playing where the participants participate.
d. Make sure that all materials are up-to-date on the law and use a higher
education context for all examples.
e. Inclusion of civil rights and ethics program in every other form of training
i. Supervisory training
ii. Faculty training
iii. Topical training (computer use policy, academic freedom,
classroom management)
f. Handouts are part of every program
i. Every program provides copy of policy and pamphlets with contact
telephone numbers.
ii. The materials are designed for the particular audience’s level of
sophistication and knowledge.
iii. Programs for Civil Rights Administrators have fairly long and
detailed written materials. When each CRA is appointed, they are
provided a copy of the materials and meet with the general counsel
to oriented and caught up.
iv. High level administrators receive all written procedures, including
a lengthy publication on harassment.
v. Each training program (power point, handouts, outline of training)
are maintained in the general counsel’s office to document training.
g. Food and break time
h. Recordkeeping is very important if you want to benefit from the training
in any subsequent litigation.
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i. NHMCCD currently maintains sign-in sheets and enters attendance
information into the HR data base information.
ii. NHMCCD is creating an on-line, web-based registration system
and training record system for all forms of training that will permit
better tracking of attendance and nonattendance.
i. Costs of Training
i. Make sure budget authority for civil rights training is assigned to a
person of sufficient respect and stature to ensure that it is not cut in
tight times.
ii. NHMCCD uses contract people (primarily lawyers, like Bonnie
Weisman) to conduct training because:
1. assures training will not be set aside because of busy
schedules;
2. brings a new and different voice than the familiar people to
employees (“consultant factor”);
3. Ability to produce higher quality and tested materials.
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