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.