The Moral Blindness of Sexual Harassment Training

Wed, 11 Jan 2012 00:01:00 -0500

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:

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The Moral Blindness of Sexual Harassment Training