Notes taken by a company official during the training program included such comments as "black females are aggressive" and "women cry more." An employee found these notes, read the stereotypes and speculated that the characteristics listed were the reasons the company isn't promoting more women and minorities. Employees then sued the company for intentional discrimination. The judge allowed the employees to submit the notes from the workshops as evidence, and Lucky was found guilty last August.
Although the judge's ruling wasn't based exclusively on the training notes, the notes did contribute to the guilty verdict. As a result, the case has major implications for other employers who wish to provide diversity training, says Kirby Wilcox of the San Francisco firm Morrison & Foerster, which was Lucky's lead counsel on the case.
"On the one hand, if employers don't conduct the training, they run the risk of breaking affirmative-action and equal-employment-opportunity statutes," he says. "The catch-22 is that if the training is conducted, statements made by managers during the course of that training may be used against the company as evidence that its managers hold gender-or racial-stereotypical attitudes. This case says that there isn't any protection for companies that wish to do diversity training, and that the external trainer even could become a witness against their client."
In light of the Lucky decision, what can employers do to protect themselves from potential litigation resulting from diversity training? "Unfortunately," Wilcox says, "about the only thing Lucky could have done was to make sure that the information didn't get into the wrong hands."
Some trainers recommend telling workshop participants that everything in the training is to remain confidential. But according to an article published in The Wall Street Journal, the consultant who led the Lucky workshops says he told the class that the proceedings were confidential. Unlike discussions between lawyers and clients, legal privilege doesn't protect the conversations between consultants and managers.
Herb Wong, president of Herbert Z. Wong and Associates in Danville, California, suggests that companies try to gain a sense of the prejudice evident in the workplace before they conduct the workshops. "Gather this information ahead of time through a cultural audit," he says. "One of the worst things a company can do is unearth this information during the workshop itself."
Discussion of stereotypes is an important first step in many diversity-training programs. Percy Thomas, president of the National Diversity Institute in Rockville, Maryland, protects his clients by destroying the flip charts on which everything is written during the workshop. "Once I get the stereotypes on the charts, I discuss with the group how these characteristics are garbage. 'And what do we do with garbage?' I ask them? Throw it away.'"
Adds Wilcox, "I can't imagine what employers can do at this point other than to hide the fact that training is taking place, and I can't possibly recommend that. This is an effective method of training, but anyone who conducts it needs to know that there's a risk involved."
Given that many companies have been conducting diversity training for many years and that this is the only ruling that pertains to diversity work, the ruling may not have much effect on the diversity movement. After all, in today's highly regulated environment, employers face potential litigation in a myriad of ways.
"Every employer," explains Wilcox, "has to make its own decision."
Personnel Journal, April 1993, Vol. 72, No. 4, p. 52.