Sexual harassment training programs are not in short supply. Three states mandate them. Two well-publicized Supreme Court cases prescribe the programs as quasi-vaccines against the maladies of liability and damages. For that reason, countless insurance companies force policyholders to herd employees into PowerPoint-based education sessions conducted by human resources personnel. There is also a cottage industry of consultants offering these courses, mostly in the mandating states.
There is little convincing evidence that training, at least in its current form, is producing a consistent downward trend in sexual harassment cases. Even in California, the first state to pass a mandatory training law, claims dipped only for a short while after the rule took effect, but soon resumed an upward spike.
Some cynics say that training provides more education for money-hungry plaintiffs than it does for potential harassers. This entails the view that a significant number of sexual harassment claims are absolutely frivolous, framed by unethical “victims” who have learned (thanks to training sessions) what allegations need to be made to get the attention of employers, insurance companies, and courts. Those who take this view are intellectual ostriches.
One need only read the judicial decisions involving unsuccessful sexual harassment plaintiffs to appreciate that many of these litigants, mostly women, suffered genuine torment, humiliation and fear in the workplace. In many cases, their claims were dismissed as having failed to state facts egregious enough to warrant a finding that the defendant had crossed the fuzzy line from boorish to harassing. Does one doubt, for example, that the female professional who rejects the advances of her male mentor in a work setting and finds herself pinned against his office wall suffers a real injury?
Several of the more popular sexual harassment training programs actually unwittingly encourage borderline conduct that falls just short of sexual harassment. They achieve this undesirable result by utilizing one or more of three flawed methodologies, detailed below.
First, the majority of training programs place great emphasis upon forcing the participant to distinguish boorish conduct from illegal conduct. Trainees are invited to consider, for example, how many lewd remarks it takes to cross the line, or precisely how intimate or aggressive a single touching must be to constitute actionable harassment. Such an approach sends a message that some level of bad conduct is acceptable and that the trick is to walk the tightrope. It need hardly be said that most of us would agree that no level of bad conduct is acceptable and that a de facto condoning of borderline behavior is a likely way to encourage the daredevils to push the envelope a bit further each time they misbehave. Put simply: boorishness begets harassment, and should be taken seriously in its own right.
Second, the programs focus on mitigation of liability rather than on prevention. Fueled by legal obfuscation, trainers emphasize the importance of largely cosmetic measures, implemented before and after an incident, to minimize employer liability. Most commonly, training programs spend inordinate amounts of time analyzing the Supreme Court’s unfortunate emphasis on whether the victim suffered “tangible employment action” as a primary yardstick of liability. Whether or not the victim suffered tangible employment action, chances are that the victim suffered.
Third, following from what was just said, sexual harassment training programs fail because they lose sight of what should be their primary goal: to create better workplaces, not to insulate employers from the consequences of intolerable workplaces. Sexual harassment is about people suffering needlessly at the hands of other people. Training programs should be about the elimination of this suffering, not about the parsing of fine distinctions that mean something to a court but not to a human being. Such programs should be about creating conditions that bolster spirits and not the bottom line.
The truth is that these programs are failing. It is time for a collective attitude adjustment. As a beginning, I suggest acceptance of, and action on, three principles:
1. Sexual harassment is first and foremost a moral issue, and secondarily a legal issue.
However one defines a moral issue, there is little doubt that the kind of purposeful conduct that leads to claims of sexual harassment raises moral questions. If nothing else, this suggests that moral training is as essential as legal training in trying to combat this problem.
2. The key to reducing sexual harassment is mandated civility in the workplace.
The sexual harassment cases described in detail in judicial decisions are mini-dramas that provide a window into how a normal workplace can turn into a psychological Hades for a victim. The decisions reveal that in many cases, the harasser’s tormenting behavior grew more intense over time, as the early warning signs were either ignored or insufficiently addressed. The common element in the situations depicted in those decisions is that the would-be harasser broke the basic rules of civility in dealing with his victim, and the incivility grew into harassing behavior. Unchecked, a “meaningless” but still over-personal touch easily evolves to an inappropriate groping, and a “concerned” question or comment morphs into an intolerably personal and explicit discussion. We should not be surprised at this phenomenon. Human beings inclined to immorality often “test the waters” before taking the plunge.
Given that, it is undeniable that an increase in civility should produce a decrease in sexual harassment. It is equally certain that civility can be taught, and should be taught. An excellent starting point would be the inclusion of a text like Forni’s Choosing Civility in the library of any sexual harassment trainer. Forni provides a practical analysis of what we must do and not do to warrant the label “civil.” Civility rules should be as commonplace in sexual harassment training as the definitions of “hostile environment” and “tangible employment action.”
3. Civility in the workplace will become widespread only with wholehearted commitment by employers.
The law does not mandate civility. If civility is to permeate our workplaces, employers must embrace it. This is not difficult: employers must enforce the mandate. Depending on the severity of the infraction, discipline or termination for incivility should be as common as it is for tardiness.
Undoubtedly, some lawyers will object to civility standards on the grounds that they are far too vague. This is nonsense. Civility certainly can be defined, or at least explained to a sufficient extent to leave little doubt about what kind of behavior crosses the line. Sure, there will be some “close” cases, but that does not preclude enforcement. Employers have been enforcing rules against “insubordination” for centuries, even though the concept is somewhat elastic and there are close cases. An employer whose lawyer advises that there is no way to draft a civility policy with teeth that will stand up in litigation has only one alternative, which is to engage a better lawyer.
Christopher J. Clay is the General Counsel and Director of Gift Planning for Disabled American Veterans. He holds a J.D. from Georgetown University Law Center and a Ph.D. in Philosophy from Fordham University. Although primarily a practicing attorney, Dr. Clay has taught philosophy, as well as nonprofit law and management, at various universities and colleges.
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