As sexual harassment allegations continue to crop up against politicians, entertainers, media icons and moguls of all sorts, it seems as if such behavior is as common as jello at a church supper.
Amidst this rising tide of revelations, some have begun to question whether sexual harassment training has been effective or whether it is just window dressing for employers seeking to insulate themselves from possible legal claims. A few have suggested that it harms more than it helps.
Does Sexual Harassment Training Work?
The knock on sexual harassment training is that it has not worked to prevent or reduce incidents of harassment. In a piece appearing recently in the Washington Post, for example, the author suggests that despite mandatory training for California companies with 50 or more employees, we still learned of sexual harassment at some large employers (e.g. Uber) and within California state government. The article then states “Likewise, virtually all large employers in the United States have anti-harassment policies and complaint procedures in place. Yet workplace sexual harassment remains common.”
The fallacy here (other than choosing to extrapolate gross generalities from anecdotal events) is the expectation that merely enacting and announcing policies is somehow supposed to remedy what is seemingly a pervasive societal ill. It is as if, in another arena, we simply lamented “Well, we passed laws against drug use so why are there so many drug users out there?”
Diving a little deeper, we read that harassment policies and training do not work because employers often misidentify harassment as just poor supervision, or that so much effort is expended protecting the rights of the accused that responses to claims are too tepid. We hear that the legal standard is too lenient (the harassment must be severe or pervasive, according to U.S. Supreme Court pronouncements) so why bother reporting? Further still, as noted in the Washington Post article, some blame for ineffective policies is placed on the victims, who are said to remain silent because they wish to be seen as team players or fear retaliation if they speak up.
Sorry, but that diagnosis misses the mark. Sexual harassment policies and training are important, and they do work, provided that we think of them not as a “magic pill” that instantly cures a sickness. Instead, they are merely elements (albeit important ones) of a healthy lifestyle dedicated to preventing the disease of sexual harassment.
What’s wrong with avoiding liability?
First, let’s dispense with the obvious. For employers, preventing liability is a worthwhile endeavor. Employers expend a tremendous amount of time, energy and expense in defending a lawsuit. Even if the employer prevails, it is a drain on resources that could have been expended in other more useful ways.
Efficient allocation of resources benefits everybody, and employers should not feel ashamed when recognizing that.
Workplace training is an important educational tool
Employees need to know the rules. It can be confusing to hear something suggestive or risqué on television or in a social gathering, only to be admonished for repeating it word-for-word the next day at work. Employees need to understand why Steve Carell’s smirking response (“that’s what she said”) to every sexual double entendre on “The Office” was inappropriate behavior in a real life workplace even as it became a catch phrase in popular culture. Context is critical in sexual harassment and we do employees a big favor in letting them know that before they engage in troubling behavior.
It is also a valuable tool for supervisors and managers so that they understand their vital roles in enforcing the workplace policies. As agents of the employer, supervisors and managers are perceived as speaking for the company. Therefore, their actions set the tone for what will be perceived as the employer’s level of tolerance for sexually oriented behavior at work. In addition, they are often the entry point for employees who seek to report harassment and invoke the protections of the company harassment policy. Supervisory personnel therefore absolutely must know how to respond to such reports in order for employees to believe that the policy is meaningful.
Training is only effective if the employer stands behind it
Sexual harassment training is meaningless, and perhaps even counterproductive, if employers do not follow through on their obligations under the policy. What good is it to inform employees of their rights to report harassing behaviors if little or no action is taken once the reports are made? Even if some action is taken, the action must be seen as commensurate with the offense or again, employees will not come forward. Instead, they will seek out lawyers who will have a field day pointing out the employer’s hypocrisy to a judge or jury.
For a policy and training to be effective, the workforce must have confidence that the employer means what the policy says. We have read about Harvey Weinstein negotiating an employment agreement that prevented him from being fired if he agreed to pay the judgments personally in sexual harassment lawsuits. Similarly, former Fox News personality Bill O’Reilly allegedly had a contract that prevented him from being fired for sexual harassment unless the claims were proven in court.
Where employers make it clear that certain people are exempt from accountability for their behavior, the clear message is that we view retaining those individuals as a higher priority than providing a legal workplace that is free from the debilitating and demoralizing effects of sexual harassment. In such cases, the critics are right – sexual harassment policies and training probably are ineffective.
Training must be relevant and dynamic
While the more salacious cases get the most press, the truth is that most sexual harassment issues are more subtle and nuanced. Sexual harassment typically involves a pattern of remarks or behaviors that may just seem awkward or borderline in isolation, but which take on greater meaning when the object of those behaviors begins to feel intimidated or offended as those comments increase in terms of number and aggressiveness.
Training that focuses only on the obvious (but rare) offenses and ignores the more common workplace sexual remarks or behaviors will likely have little meaning for employees. In fact, it may influence them to believe that the employer does not “get it” and that reporting harassing behavior will be fruitless. Training must focus on what is relevant to the people who are in the audience.
It seems misguided to claim that sexual harassment policies and training do not work because they have not yet eradicated the problem that they are designed to address. Indeed, it could be argued that things could be much worse but for the employer community’s willingness to take on the issue through policies and training.
In our view, sexual harassment training remains a valuable tool in maintaining a productive and harmonious workplace that is free from the negative effects of sexual harassment. However, it is only a tool, and it must be exercised as part of a greater design intended to demonstrate to everyone associated with the employer that such behavior is not tolerated.