International Association of Facilitators
1999 Annual Meeting
Williamsburg, Virginia, USA

January 14-17, 1999

Thread #6: Track: Professional & Self Development

Professional Facilitators: AreYour Programs Legally Defensible?

Patricia S. Eyres
Litigation Management & Training Services, Inc.
301 E. Ocean Blvd., Suite 220
Long Beach, California 90803
(562) 495-0098
fax: (562) 495-1785
PatEyres@aol.com

Abstract

From unauthorized use of graphics, video or cartoons to discriminatory content to unlawful methodologies, facilitators face legal risks in fulfilling your professional responsibilities. Some basic awareness coupled with consistent procedures prevent exposure to lawsuits in your professional activities.

Drawing upon actual case examples, this paper, and the conference presentation, will take you step-by-step through the legal risks, rights and responsibilities which impact your interventions -- whether you are a full-time professional facilitator or are called upon to make presentations and facilitate meetings as part of your job. This article includes realistic preventative measures and sensible solutions to the potential court challenges facing professional facilitators today.

Despite your best efforts, you may still face legal challenges from your professional activities. You cannot absolutely prevent contract disputes, assertions that your content is discriminatory, conflicting copyright claims or the lawsuits that invariably follow. You can protect yourself and have the best opportunity for a successful defense if you follow consistent procedures and develop effective documentation techniques.

Understand the Basic Parameters of Copyright Law and Obtain Permission to Use Materials

When you create or distribute materials in the form of handouts, articles, outlines, graphic presentations, or sound recordings, copyright law applies. These are all intellectual property protected by the U.S. Copyright Act of 1976. The author or creator of the work has an ownership interest from the moment the materials are fixed in tangible form.

Text-Based Materials -- Printed and Electronic

The author of any text you use for handouts, visuals or graphic presentations has an ownership interest from the moment the materials are fixed in tangible form. They perfect greater rights by registering with the U.S. Copyright Office. This includes the exclusive right to reproduce, adapt and distribute the work. Facilitators who fail to obtain permission to use protected work can be sued for infringement.

Lengthy passages and close paraphrasing of others' work -- even when you use quotation marks, attribution or credit -- are also governed by copyright law. The defense of "fair use" is not generally applied when the user is a commercial or profit-making venture; a status all facilitators seek. Most courts conclude that commercial users can afford to pay for permission to use another person's protected expression. This is customarily accomplished through the use of a license agreement.

You cannot lawfully copy protected materials at your own photocopy machine, and you will probably find that commercial services will refuse to do so without a signed authorization from the copyright holder. A group of major publishers obtained a $510,000 judgment against one duplicating business for copying excerpts from books without permission, compiling them into "course packets," and then selling them to college students.

When using printed materials, start from the assumption that they are copyright-protected. First, look for a copyright notice. If there is none, but the materials are printed in a newspaper or periodical, call and ask for their copyright permission department. Inquire who owns the copyright and get a complete address and telephone number.

When you obtain material from electronic sources (such as the Internet), look for a copyright notice or a hypertext link to a "legal notices" page. If you cannot locate a notice, do not assume the material is not subject to protection. If you intend to use the material frequently, contact the U.S. Copyright Office, who will direct you to resources for conducting a search.

Graphic Materials -- Photographs, Cartoons and Visuals

As a professional facilitator, you may frequently use visual images to enhance your presentation; in handouts, overhead transparencies, slides, large-scale blow-ups, diagrams or other displays. Still images, such as photographs, cartoon strips, pictures, calendars, posters, greeting cards, drawings and designs, are all subject to copyright protection. So are moving images, such as film, video and television broadcasts.

Copyright Office Circular 40, "Copyright Registration for Works of the Visual Arts 2" (1990), provides examples of works that qualify for copyright protection as "pictorial, graphic and sculptural works" which are frequently incorporated by facilitators and trainers into their overall presentations. These include cartoons, comic strips, games, puzzles, greeting cards, holograms, computer and laser artwork, logo artwork, drawings, paintings, print advertisements, reproductions, technical drawings and diagrams.

In addition, photographs are copyrightable in many forms, including prints, blow-ups, negatives, film strips, slides, overhead transparencies, or machine-readable digital form. In Playboy Enterprises, Inc. v. Frena, for example, the court held that making digitized versions of copyrighted photographs available on a computer bulletin board infringes the copyright owner's rights of distribution and public display.

The holder of the copyright is the photographer. Facilitators who intend to use photographs or still images should obtain permission and/or license agreements from both the photographer and the subjects featured in the photograph. When the "use" will typically involve more than a single publication, the request for authorization should specify the scope of the intended use, the anticipated number of times it will be used and in what context, and obtain written authorization for multiple uses. This will prevent later claims that the actual use exceed the authorization. Frequently with multiple uses, the parties will obtain a license agreement. This involves a fee arrangement to compensate the copyright holder for the anticipated number of repeated uses of his or her work.

Computer technology has made it possible to use text, still images, motion picture, sound and music to create a new integrated presentation product that may be used interactively. The copyright laws apply to each separate content element: music, video, sound, animation, graphics, art and print media. Accordingly, you must obtain separate authorizations from all authors, creators and contributors.

Audiovisual Materials -- Music, Sound Recordings and Video

When you enhance your presentations with sound and music, the sound recording is subject to copyright protection, giving the copyright holder exclusive performance rights. Playing an audio tape or CD during your presentation is as much a performance as live entertainment.

One common mistake is assuming that music and other sound recordings are in the public domain and freely useable. This can be a costly error when your presentation is built around sound and music created by others and you haven't obtained permission or license agreements. Sound recordings are subject to copyright laws regardless of the nature of the sounds recorded. Common examples of sound recordings include a performance of a copyrighted or public domain musical work, a recording of spoken words -- such as a drama or speech -- sounds of nature and special effects. Sound recordings are "works that result from the fixation of a series of musical, spoken or other sounds ... regardless of the nature of the physical medium, such as disks or tapes, in which they are embodied."

In authorizing the use of audio tapes, video productions or CD versions of training vignettes, copyright owners frequently request payment of a license fee for the anticipated use. Arrangements vary from a one-time fixed fee, to a "per performance" or "per copy" calculation for multiple or repeated use. The terms and conditions of license fees are subject to the agreement of the parties.

Copyright protection for videotaped training vignettes may be secured individually by all contributors, including the script writer, story board editor, actors, musicians, videographer and producer. Fortunately, with most commercially available productions, the performers and technicians are paid for their work, and thereby relinquish their rights through a "work for hire" arrangement. In these situations, the products are also invariably registered with the U.S. Copyright Office, and the owner sells the product with express license documents. Accordingly, locating the owner and obtaining authorization is rarely difficult.

Multimedia-Based Materials -- Animation, Online Data and Graphics

Until recently, most trainers' and facilitators' violations of the Copyright Act involved copying or incorporating the protected work of another person into their own written training materials. The expanding use of technology for interactive training provides new forms of copyright violations.

Multimedia is being used increasingly during training and facilitated meetings. This includes on-line interactive modules and presentation displays. The material may include text, graphics, animation, sound, music, video and scanned images drawn from still photographs. As such, all of the underlying works contained in a multimedia product are subject to copyright protection. Each copyright holder must be separately contacted and permission sought.

Just as commercial distributors of videos acquire the exclusive rights to license their product (by obtaining work for hire and permissions of underlying creators), so do vendors who market multimedia products for training. Accordingly, purchase of interactive CD-ROM or other interactive materials for instruction and testing -- and adherence to the license agreement -- will prevent copyright violations.

In the absence of a clearly defined licensor, it is the facilitator's burden to identify all copyright holders and obtain their individual authorizations to use any portion of their protected works. Even displays of the material for in-house presentations must comply with an applicable license agreement. Likewise, making a multimedia work available to the public "on-demand" via the Internet -- or a company Intranet or local area network -- may be a public performance, and must be in compliance with the terms of the authorization or license agreement.

Widespread use of the Internet, coupled with the ease of accessing electronic materials and the emergence of new technologies for training delivery will impact copyright law standards. While the 1996 Act still controls -- and protects these materials to the same extent as printed text -- trainers can expect clarification and amendments to the law in the years to come. When researching on-line, be sure to check the legal notices section of all Web sites to ascertain the intellectual property interests and identify copyright owners.

How to Obtain Permission to Use Copyright-Protected Materials

  1. Put the request in writing, with the complete date. A letter written in early 1997 may be used as evidence in a courtroom in 2001.
  2. Include a complete copy of the work or excerpts to establish complete evidence on what rights were requested and granted.
  3. Be specific about the intended use. Specify reproduction and public performance rights, as well as intended multiple uses.
  4. Keep complete and accurate records of each time the material is used pursuant to permission or a license agreement.
  5. Place on every copy of the handout and visuals, a notice that the material is reprinted with the express permission of the copyright holder. Include the complete name of the author or artist, date created, publication (if applicable) and date published.
  6. When obtaining permission for still images, contact both the publisher and the photographer. Specify the scope of the intended use and negotiate a reasonable license agreement for multiple uses.
  7. When using material from electronic sources, look for a copyright notice or a hypertext link to a "legal notices" page. If you cannot locate a notice, don't assume the material is not subject to protection. If you intend to use the material frequently, contact the U.S. Copyright Office, who will direct you to resources for conducting a search.
  8. Determining who owns the rights to a photograph can be difficult and time-consuming. If it appears in a print publication, the publisher may have acquired ownership of the copyright. However, photographers often retain their own rights. Many photographers retain the copyright, and sell the print to the publisher to right to use it in certain ways. Such agreements often contain restrictions on use and reproduction of such pictures. This may include size, format, time frame, geographic area or number of copies that may be reproduced.
  9. Once you obtain permission to use copyrighted cartoons or graphics on your slides or transparencies, include the complete name of the artist, date created, publication (if applicable) and date published and place the copyright notice on the bottom of the slide (e.g., copyright 1997, Charles Shultz. All rights reserved). Identify in your handout the overheads you used, and specify that they were used with the permission of the copyright holder.
  10. When seeking permission to use cartoons, graphics, animation or other audio/visual materials, provide a complete description or picture of the materials or actual copy of your intended final product to the copyright holder. Keep a complete set for your own files, along with the permission or license agreement
  11. Anticipate using music, videos or graphics multiple times. Accordingly, be prepared to negotiate a fair and reasonable license fee, based on the number of uses. Typical arrangements include:

Protect Your Own Work Product and Proprietary Interests

As a professional facilitator, you invest significant time and resources developing proprietary presentations and products. Yet, many facilitators don't take the time to protect their own work product from infringement. If you don't address the issue when you learn that a signature story or unique exercise has been used by someone else -- verbatim or in significant detail -- you may not be positioned to enforce your ownership rights.

Know Your Rights

As a professional facilitator, you should understand which of your products and materials are subject to protection under the Copyright Act and any relevant state laws. The Federal Copyright Act of 1976 grants facilitators, as creators of intellectual property, a wide range of intangible, exclusive rights over their work. These rights include:

Once you know which products and presentations are protectable, evaluate the extent to which you wish to seek copyright protection.

Preserve Your Rights

Take the steps to reserve and enforce copyright protection. This includes placing appropriate copyright notices on all written materials and audio visual aids you will reproduce, distribute, display or publicly perform.

Place copyright on all visual aids you use during a presentation; particularly if you intend to distribute or provide copies of your visuals upon request of your client or an audience member. Take the steps to register those products and materials which, if used by others, would impair your business and for which you wish to preserve the right to sue for infringement.

To register your own work, complete the simple application, deposit of $20 and application fee in a single package addressed to: Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559. Your registration is effective on the date the Copyright Office receives the application, deposition and application fee in proper form.

Keep track of new methods for registering copyrights, such as "CORDS," which is an acronym for the experimental Copyright Office Electronic Registration, Recordation and Deposit System [Web site: http://lcweb.loc.gov/copyright/ cords.html].

Be Prepared and Respond to All Requests to Use Your Work

Be prepared when someone asks for permission to use, display or perform your copyrighted work. If you don't want others using your work, politely decline. Although copyright protection is preserved unless you expressly give permission for use, it is prudent to respond in writing to every request. If you don't respond at all, or your recordkeeping is haphazard, an infringer may be able to assert their subsequent use was not willful. Keep accurate records of every request and your response.

Consider in advance how you will define the limits of authorization you are willing to provide to those who request a license agreement for use of your handouts, unique presentation products and related materials. Plan the parameters of any license agreements you will sign. This will facilitate easier negotiations, and reduce the risk that your initial pleasure at someone's interest in using your work will interfere with your thorough analysis of the financial dimensions of the arrangement.

Understand When Presentation Content May Be Unlawful and Avoid Using Inappropriate Material

Employer meetings, conferences or other business settings provide significant sources of business for professional facilitators. Attendance may be mandatory, strongly recommended or an enhancement to careers. In these settings, participants enjoy rights to equal employment opportunities, which include freedom from harassment or other discrimination. Employees have a legal right not to be forced to leave your program to avoid hearing unwelcome language or seeing graphics which are offensive due to sexual, ethnic, religious or other inappropriate content.

Your client is legally responsible for all activities that occur in its workplace -- or at a company sponsored event -- and you may also be personally at risk of being sued for discriminatory content. This is especially true when attendance is mandated. An employer must, by law, take "immediate and appropriate corrective action" if an employee is harassed by non-employees; even retained facilitators. At a minimum, this may mean excluding the facilitator from future opportunities.

Verbal or Visual Harassment in the Training or Meeting Room

Reported verbal hostile environment harassment cases stemming from training or facilitated meetings include jokes, insults, innuendo and comments of a sexual, racial or religious nature. Visual harassment liabilities arise through display of cartoons, props or other graphics that are demeaning, insulting, patronizing or otherwise strip an individual or a group of dignity.

In a high profile case, Markham v. White, individual instructor/facilitators employed by the U.S. Drug Enforcement Administration and retained as facilitators for zlaw enforcement agencies are defendants in a sexual harassment lawsuit, based on presentations containing explicit sexual references, jokes and demeaning references to women in general and female audience members in particular. Certifying a nationwide class action, the judge concluded that the presentations created a "sexually harassing training environment."

 Similarly, in Stacks v. Southwestern Bell Yellow Pages, the court found sex discrimination and hostile training environment. This was based on a supervisor's comment that "women in sales are the worst thing that had happened to this company," and on evidence that he permitted the showing of sexual videotapes and strippers at sales meetings. The defendant argued that the incidents at these mandatory training sessions were "isolated," but the court disagreed and sent the case to a jury to consider appropriate relief for the employee.

In addition to suggestive or demeaning jokes, inappropriate content that turns audiences off the facilitator's message and onto litigation against the sponsor of the program includes:

  Diversity Workshops

 One of the most serious legal challenges to diversity training stems from use of the participants' comments as later evidence of management bias. Indeed, racial, ethnic, or sex-based remarks made in diversity training sessions have come back to haunt trainers and their employers in later employment discrimination litigation.

 The leading example is Stender v. Lucky Stores, Inc. In 1988, Lucky Stores tried to determine the cause of the glaring lack of promotions for women and minorities within the organization. As part of its attempt to remedy the situation, the company conducted an in-house diversity training session for all store managers. As part of the training, the managers took part in an exercise that is commonplace in many diversity training seminars; they were asked to list various stereotypes that they had heard about women and minorities. Among the stereotypes listed by the store managers were the following:

 Women will not work late shifts because their husbands will not let them; how does your crew get used to working with a woman boss; women are not encouraged to be promoted; you get used to someone fitting the "picture," and the "picture" is a white male; customers might object to seeing a woman in management; women are afraid to work at night; women seem to step down a lot after being promoted; women do not go into management because they are not accepted; men do not want competition from women; the crew will not accept women; women cry more; women should be stronger; women do not have the drive to get ahead; women are not the bread winners; women are considered the weak sex; men to the hard, physical work; Black females are aggressive; and the work force would not perform for a Black female manager.

 Later, several female employees filed a class action alleging sex discrimination based on lack of female promotions. During pre-trial discovery and over the objection of Lucky Stores, the court ordered production of the flip charts and notes from the in-house diversity training session containing the managers' flagrant stereotyped comments.

 The court relied on the notes as evidence that Lucky's managers harbored discriminatory attitudes toward women. The judge found that the comments were not just portrayals of social stereotypes, but reflections of what many Lucky managers firmly believed. Thus, the court concluded that the notes constituted "evidence of discriminatory attitudes and stereotyping of women" by Lucky's managers.

 Lucky contended -- unsuccessfully -- that the notes were taken out of context and were examples of stereotypes and not actual opinions of the managers. The trainer used those responses to show that people have biased pre-conceptions of a good worker. Plaintiffs alleged that the training was conducted only to ward off an EEOC investigation.

 After a lengthy trial with no jury, the judge found for the plaintiffs and awarded over $90 million in damages (remember, there were many claimants). Thus, although the company initiated the diversity training in order to remedy the lack of promotions for women and minorities, the feedback that came out of the training sessions turned out to be a significant factor in the employer losing the lawsuit. The Stender case was ultimately settled, and in addition to a significant monetary payment, the store agreed to spend at least $20 million implementing new personnel policies, procedures, training and affirmative action goals.

The solution is not to drop valuable diversity programs. Rather, be proactive in your approach to collecting workshop materials and practical in your use of those materials. If you conduct diversity training or facilitate diversity discussions, be aware of the Stender case, and develop appropriate policies on the use and retention of flip charts, notes and other documentation of participants' comments. Don't stifle interaction or honesty, but create a climate of mutual respect and dignity for all participants. Make sure participants understand the purpose of their interaction during the workshop. Consult your HR or legal departments for guidance relative to record retention.

Confrontational Content and Methodology

Another frequent source of discrimination complaints involve sexually harassing content or presentation methods in diversity training. These cases stem from written materials, verbal content (jokes and banter) and related conduct in the presentation of the instruction which involve sexually offensive material.

Presentation design and methodology must be appropriate to meet the learning objectives and must not itself create a separate basis for significant liability. To professional facilitators, this seems obvious, but a high profile case involving the Federal government provides a relevant example.

In 1994, the Federal Aviation Administration sponsored a confrontational exercise, which was part of a much larger program on diversity. The activity was drawn from the Navy's Tailhook episode, but was later ridiculed by the participant and the press as "malehook." During the exercise, men were subjected to a one-minute trip through a gauntlet of women, who teased, taunted and fondled them. The stated purpose: to turn the tables on the men and give them a blunt lesson on what many women regularly experience.

The men subsequently complained that they were forced to walk through the gauntlet of women who were instructed to shout crude sexual remarks and reached out to touch their chests, legs and buttocks. Some men complained of very intrusive physical touching. One former controller who participated in a settlement between the Air Traffic Controllers Union and the FAA, claimed that his trip through the gauntlet had a grave effect on his marriage and forced his wife into therapy. As he described it:

"I was escorted through a door and into a room crowded with women who starting saying 'my, he wears tight jeans' and 'there's a nice bulge in his pants' and one woman started rubbing my chest, and another put her hands in my back pockets and said 'what a nice rear end' or something like that ... Another started playing with my belt and reaching into my pants pockets."

On September 2, 1994, eleven air traffic controllers filed a sexual harassment lawsuit against the U.S. Department of Transportation arising out of this mandatory workshop. The male plaintiffs alleged that the program created a hostile and offensive working environment. Douglas Hartman, an eleven-year veteran of the FAA, became the lead accuser. He claimed that when he objected to the exercise, he was ridiculed with lewd and demeaning comments by a manager. Then, following the workshop, he suffered further harassment, anguish and the lost of promotion opportunities because of his objections during the workshop. Although he filed an internal complaint in September, 1992, it was not acted upon and he allegedly experienced further retaliation.

There were also elements of alleged graphic sexual harassment used as course materials. According to a judge's written opinion refusing the government's request to throw out the suit, following the gauntlet, the trainers conducted a discussion where the men were numerically rated "with their names on a chart subscribed to drawings of male genitalia." The pictures were graphic, and the men were allegedly humiliated by being compared to these large-scale graphic posters. The judge also found this graphic material, and the accompanying verbal discussion, grounds to allow the controllers to seek a jury's opinion on the "reasonableness" of their feeling the training environment hostile and offensive. The government chose instead to settle for an undisclosed sum.

Mr. Hartman complained to no avail to his immediate supervisor that the gauntlet exercise was so stressful he preferred to sit out the rest of the training. Part of the problem was the supervisor's alleged failure to take the complaint seriously and his cavalier reaction to Hartman's genuine distress. An even larger problem for the FAA was the fact that the same program was repeated several times over the following months, despite other complaints.

Until 1993, the Department of Transportation programs also included addressing participants as "jerks and jerkettes," and racial groups were allegedly encouraged to exchange epithets. These types of confrontational exercises, with the objective of awareness, have resulted in dissatisfaction and even backlashes by employees; particularly white men who have perceived the programs as "bashing."

When such methodology discourages full participation, it may in fact defeat the very purpose of the program. Of more concern in legal circles is the real potential for violating Title VII and the Civil Rights Act of 1991, based on targeted adverse behavior of a racial or ethnic nature. The 1991 Act significantly expanded the remedies available to participants adversely affected, including the right to a jury trial by their peers. The genuine risk to the organization is the very discrimination the training is intended to prevent.

The FAA is not the only employer to face charges that its diversity training methodology crossed the line of propriety -- and legality. The Wall Street Journal reported on February 13, 1997 that R.R. Donnelley suspended its diversity awareness training after employees criticized the program and threatened legal action.

And, there is always the danger that the content of your appropriate diversity program will be used by participants, out of context, and will come back to bite you. Consider the widely criticized Texaco executives caught on tape making remarks about "black jelly beans ... falling to the bottom of the bag." This specific phrase was at least partially drawn, apparently out of context, from an appropriately presented diversity awareness program they had attended. Does this mean that you must dis-continue any sensitive training because your participants may misuse or mischaracterize your content? Of course not. But, awareness of the potential legal pitfalls can reduce the potential for unintended consequences.

Another case that involved methodology in a workshop was Fitzgerald v. U S West Communications, Inc. The 10th Circuit Court of Appeal addressed the issue of diversity training in a slightly different context. U S West Communications was found liable for compensatory damages as a result of racially charged comments made by its in-house training instructors when she was selecting outside facilitators to conduct the company's diversity workshops.

A new trial was ordered to determine the amount of damages owed, because the jury awards totaling more than $500,000 each to two independent consultants were "grossly excessive." The court also dismissed an award of punitive damages to the consultants, saying U S West "in no way conducted itself so as to permit the jury to conclude that it deserved a financial smart as punishment or a deterrence."

The consultants were a caucasian female and a black male diversity training consultants. They were undergoing the selection process for contract to provide diversity training. The selection process involved participation in a five-day workshop run by U S West's trainers. As part of the workshops, participants were called upon to recount personal experiences, generally in the area of race relations, that showed why they were committed to performing diversity training. Fitzgerald talked about her long term affair with a black neighbor and how opposition by black women led to its deterioration. A U S West trainer reacted angrily, but denied that she used a racial epithet.

The court addressed the emerging and challenging issues involved in content/ methodology in diversity workshops:

"This developing area of diversity training has, at its motivating core, highly emotional areas of interpersonal relationships with real and potentially volatile strong conflicts, and its purpose is to cause those involved to recognize and deal appropriately with such as they find within themselves and others.

"... unfortunately, the very workshop format which was designed and intended to expose strong, unacceptable emotions and responses so that they could be examined and controlled, in Sapp's case engendered an emotional response that while not uncommon, was one that Sapp herself was unable to deal with."

Content that Infringes Religious Freedom

"New Age" or non-traditional training programs have captured the attention of both the Equal Employment Opportunity Commission (EEOC) and the courts. Designed to unleash the participants' potential by taking them out of both traditional classroom settings and their own "comfort zones," these programs are frequently provided for managers and supervisors.

There are as many definitions of "New Age" training as there are suppliers of such programs. Their techniques include self-hypnosis, guided visualization, therapeutic touch, biofeedback and inducing altered states of consciousness to allow participants to achieve self-actualization, with the goal of improving motivation and productivity on the job. Defenders of new age programs respond that they are designed to enhance communication, open thought processes and stimulate personal awareness that leads to productivity.

In 1988, the EEOC issued an addendum to its Compliance Manual relating to non-traditional training programs. The EEOC relied largely on two articles -- one from the New York Times and one from Time magazine -- in concluding that those programs may well violate employees' religious rights under Title VII. The New York Times article described various instances of apparent conflicts between New Age training programs and employees' religious beliefs. One such instance involved a large California public utility that has been requiring employees to attend seminars based primarily on the teachings of a mystic, George Gurdjieff, who is associated with Eastern mysticism and the concept of "the power of positive thinking."

Employees complained that the seminars are a subtle form of mind control that seek to alter the employees' beliefs, self-concepts and religious views. In one case, an employee was discharged by Firestone Tire and Rubber Company after he refused to participate in a New Age training program, because the training course focused on the individual and emphasized that the individual has the power and ability to deal with all problems. This conflicted with his religious beliefs that human fate is dependent on the will of God.

Title VII prohibits religious discrimination against employees with respect to their pay, training, access to opportunities, conditions or privileges of employment. The law defines "religion" as all aspects of religious observance and practice, including consistently held belief systems. Mere philosophical beliefs with no religious basis, no matter how strongly held, are not protected.

Title VII's prohibition of religious discrimination is not limited to situations in which the employee wishes to observe a Sabbath or holiday. Once an employee has stated that he has a sincerely held religious belief that conflicts with one of your employer's requirements, including the content of training programs, you have a duty to address some type of accommodation. The employee has an obligation to cooperate in seeking a resolution of a conflict, and may not insist upon an accommodation of his or her own choosing. You need not make an accommodation if it will result in undue hardship to your employer.

Several high-profile cases involve claims by employees that new age training programs infringe on their protected rights of religion. The most notable case was Kim v. DeKalb Farmers Market, Inc., where the employer sponsored a mandatory training module for managers, and employees that allegedly required participants to disclose some very private information about their personal lives, which they felt infringed on their privacy. In addition, the vendor hired by the employer refused to excuse people and allegedly bullied them into participating. Also, employees contended that the trainers sought to impose values, doctrines and thought processes which conflicted with the employees' religious beliefs.

Eight employees brought suit alleging a violation of Title VII. Mr. Kim, who was a supervisor, claimed that he was urged by his boss to attend the training session which was designed to create a breakthrough experience, but which Kim claimed required emotional confessions of the participants and amounted to psychological conditioning and programming. The owner of the business told Kim to recruit his subordinates and when he refused conditions at work became so difficult that Kim was forced to quit. The case was settled out of court for an undisclosed sum.

The allegations dovetailed with a previous EEOC directive which referred specifically to "New Age" programs. EEOC warned employers to be vigilant about protecting the rights of employees to practice their religion by allowing them to opt out of programs that conflicted with their religious beliefs. In addition, a previously decided California case involving alleged "indoctrination" training at Pacific Bell was instrumental in the rapid settlement of the DeKalb Market case.

In another highly publicized case, a public utility sponsored a mandatory "Leadership Development" program which was designed to teach people to "think about thinking." The consultant hired by the company used techniques derived from Eastern mystic teachings. As a result of employee complaints, the California Public Utilities Commission investigated the program, and concluded that the training created fear, decreased productivity, wasted time and resulted in a split in the corporate culture and an intimidating work environment.

The DeKalb Market case also had elements of religious intimidation. Employees were told to shed their own religious beliefs in exchange for a new one being taught by the instructor. The roots of the training had definite religious content, and the religious framework was concealed from some employees until advanced training sessions. Additionally, the facilitators promoted their programs as "life changing" and the principles being taught were presented as essential to the personal and professional success of the employee. This met the EEOC's three-prong criteria used to determine if the content is religious.

The EEOC reaffirmed that an employer may not impose any religious requirements on the terms and conditions of employment without discriminating on the basis of religion. According to the Policy Statement, religion-based conflicts raised by New Age training programs "can be resolved under the traditional Title VII theory of religious accommodation." In its Compliance Manual, the EEOC states that "an employee need only demonstrate that participation in the program in some manner conflicts with his/her personal religious beliefs," and upon that demonstration the employer must:

  1. "Substitute an alternative technique or method not offensive to the employee's belief;
  2. Excuse the employee from the particular offensive portion of the program; or
  3. If the employee contends that the program itself rests upon concepts contrary to his or her beliefs, excuse the employee from the entire program."

Content that Damages Reputations

False references to a person's business abilities, work performance or lifestyle, you may result in a claim for defamation of character. A statement is "defamatory" in most states if it "tends" to cause injury to a person's reputation, exposes him to public hatred, contempt, ridicule, shame or disgrace, or has an adverse effect in trade or business. Even comments that an employee "suddenly resigned," or was terminated for unspecified reasons constituting "unsatisfactory performance," have been considered sufficiently negative to be construed as defamatory statements, when false or recklessly made. When customizing your materials to include anecdotes or other stories about real people in the organization or industry -- past or present -- carefully verify your facts, or obtain permission from the subject of the comments.

A photograph can also be defamatory if it doesn't accurately reflect the original image or is displayed in a context suggesting a false "fact." Alterations of photographs have been considered defamatory in print media, such as where a picture of a woman was altered to make it appear that she was bald, and where a photograph of a female model was juxtaposed with a picture of an elderly male holding a "dirty book."

In most cases, hyperbole and figurative statements are not unlawful because, when taken in context, a reasonable person understands the facilitator is using language to emphasize a point of view. But, disparaging remarks cast as "fact" about people or products are risky. And, absence of intent to harm won't be a complete defense to a lawsuit by a private individual. A facilitator who makes a false statement of fact about a private person may be liable for resulting damage, even if you simply fail to carefully check your facts. Facilitators enjoy a wider latitude with statements about public figures, who must prove both falsity and malice before they can successfully sue for defamation. Reckless disregard of the truth can serve as malice in this context.

Content that Invades the Privacy of Program Participants

Another growing litigation trend involves invasion of privacy claims. Individuals have a right to expect that their private affairs will remain private, and a facilitator may be liable if she interferes with an individual's right to be free from unwarranted publicity. Reported claims have rested on appropriation of a picture or name without consent, publication of facts which place the person in a false light, or public disclosure of private facts about an individual.

The courts balance the business justifications for the disclosure against the subject's reasonable expectation of privacy. Your legal risk of liability depends on the extent and degree of the intrusion and the justification for use. You will better protect yourself by establishing a specific reason to disclose the information in your presentation, evidence of your reasonable safeguards against abuse of private information, or express permission from the subject.

How to Use Effective Methods Without Inviting Participant Lawsuits

It isn't necessary to scrap all creative or non-traditional training methods. Certain precautions will limit legal liabilities:

  1. Do not make programs mandatory if there is any question that they might be described as New Age or as religious indoctrination of any sort. The same approach should be considered with respect to intense stressful methodology unless injecting stress into the program is directly job-related.
  2. If employees elect not to participate on religious or privacy grounds, be sure that appropriate alternative training is available. For example, a program to develop creative thinking skills using techniques that some employees find objectionable should be supplemented by a different program on creative thinking skills. Consider alternative developmental approaches that result in the same performance outcome.
  3. Alternatives should be non-punishing. This means both direct job-related actions and "subtle" forms of retaliation. It is a hollow remedy to allow an employee to "opt out" of a non-traditional program on religious grounds, only to be faced with ostracism or ridicule from supervisors or co-workers.
  4. The program should truly be voluntary. This means that employees electing not to participate on religious grounds must not be treated differently in conditions of employment, promotional opportunities or otherwise deprived of opportunities to acquire skills which will lead to career advancement.
  5. With psychologically demanding or stress-inducing programs, ask yourself what concrete objectives you have for the program.
  1. If you have determined an appropriate business basis for training which may be personally intrusive, offer employees an option to begin the program in small groups before bringing everyone together. This may be less intimidating.
  2. If emotional conflict is anticipated, make sure the trainer or consultant is well prepared to deal with it immediately. If a participant becomes agitated or ill, be prepared to take appropriate steps to obtain immediate medical attention. At the same time, closely monitor the effect of a participant's anxiety on other participants.
  3. Make sure that supervisors and managers are trained to avoid intimidation, coercion or "heavy handed" discussions of their own religious beliefs or support for new age thought processes.
  4. Develop and enforce consistent policies that prohibit any form of religious coercion, intimidation or harassment by employees and supervisors, and impose consistent disciplinary measures, where appropriate.
  5. Document the steps you have taken to protect employees' privacy rights and emotional well-being. This documentation should include a summary of your investigation into the content and methodology of the program, as well as the concrete steps you took to make it both voluntary and non-penalizing.

Avoid Giving "Negligent Advice" that Harms a Client's Business

Facilitators make presentations on a wide range of topics, including skills which are essential for their clients' business practices. Often, clients rely on the facilitator to provide the audience (usually employees) with essential information and develop important skills. For example, facilitators who present skills-based programs on using technology, financial management or other core business issues must provide both appropriate content and methodology to assure that their audience members apply the information as intended. When the facilitator provides inaccurate information, and their audience make mistakes based on that information, the facilitator may be sued for subsequent business losses.

A more significant potential for liability rests with facilitators who provide public seminars on matters of interest to a wider audience. Topics such as investment tactics, how to make money in real estate or other financial or self improvement programs are ripe for claims of negligence, and even fraud, when an audience member suffers losses as a result of the "advice."

Negligence claims arise primarily under state laws. In a damage lawsuit, legal duty is based on the applicable "standard of care" for facilitators in a particular industry. Standard of care is often defined as the level of conduct expected of similarly educated or experienced professionals in a given field.

The determination of whether a duty of care exists is generally a question of law for the courts to decide; whether the facilitator breached this duty of care by giving unreasonable advice under the particular circumstances is a question for the trier of fact.

Maintain Good and Accessible Documentation

To maximize your ability to protect your legal interests, make sure your documentation is effective. Documentation is a written record of an event, discussion or observation. Any recorded information, whether formally or informally generated, can be used to substantiate your actions and bolster your position.

When called upon to defend against a legal claim, you must be able to provide credible information to reconstruct events, to explain what occurred and to substantiate your efforts to comply with all applicable legal requirements. Haphazard recordkeeping is frustrating and can devastate your successful defense.


Patricia S. Eyres, J.D., an experienced litigation attorney, is a professional speaker, trainer and author on proactive legal management of the workplace. She is President of Litigation Management & Training Services, Inc., in Long Beach, California. Her newest book, The Legal Handbook for Trainers, Speakers and Consultants: The Essential Guide to Keeping Your Company and Clients Out of Court, provides detailed information on how to protect your own work product, avoid copyright infringement and minimize other significant legal risks. The Handbook is available from McGraw-Hill at 1-800-2McGRAW.