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How Well-Meaning Diversity Training Programs Can Come Back to Haunt You

Having taught restless teenagers for many years before I became a lawyer, I have always believed that there are few things as ineffective as lecturing, since only a few gifted souls can pull it off effectively. While the adult learner may be more polite than a fidgety eleventh grader, his attention span is usually not much greater when forced to sit through a dreary PowerPoint with ten bullet points per slide. At the end of the day, a CLE presentation to lawyers, an in-house training for employees, or an eleventh grade trigonometry class are pretty much the same: the best teaching in each of these situations is usually interactive and demands that the learners fully participate in the experience.

Despite my pedagogical bias for open discussions in the classroom, there is one type of training session where interactive teaching makes me nervous: diversity training. While asking a group of mostly older white men to provide examples of situations where they may have engaged in subconscious stereotyping might provide a teaching moment, asking participants in a diversity training session to confess to discriminatory—albeit unintentional or subconscious—conduct could come back to haunt the employer. These well-meaning exercises in self-discovery can be used against the employer when multiple witnesses testify that they heard the manager admit to his prejudices during the company’s diversity training years earlier. At that point, it can be difficult to explain to a jury that the manager who was sufficiently self-aware to discuss his innate biases was probably the least likely to be influenced by them in the workplace. Instead, you are stuck with his words.

For these reasons, I now reluctantly recommend that human resources trainers exercise great caution when conducting interactive training on sensitive subjects involving diversity or discrimination in the workplace. While I think frank discussions of hypothetical situations can be useful, presenters should avoid posing questions that might invite confessions from the participants that could be distorted in subsequent litigation. If the trainer decides that it is important for the participants to be introspective about their own innate prejudices, such as “Think about a situation where you may have” questions, that’s okay. Just make sure the participants do not share their thoughts with others.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.