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Posts Tagged ‘Clarence Thomas’

This is why workplace harassment training is so ineffective

Wednesday, July 25th, 2018

It’s a scenario that has become familiar to almost anyone who works in an office.

After “recent events around the country,” a well-meaning sexual harassment educator comes in to teach the letter of the law. The mandatory training provides information on “each and every sexual harassment law,” but the effects fall somewhere between useless and detrimental. The trainer comes at a large financial cost and proves to be of questionable value. Ultimately, the trainees leave discouraged and the hostile climate remains.

This all-too-familiar scene was demonstrated by the arrival of Petey the Sexual Harassment Panda on South Park, way back in 1999. His song-and-dance approach before a class of fourth graders was obviously a caricature. But sexual harassment experts say the problems he demonstrated — overly legalistic trainings that are more about liability protection than culture change and that come without proven results — have become ubiquitous, even as America reckons with the #MeToo moment. Trainers and training companies make a mint off of these trainings, more and more places are mandating them, and there is a built-in disincentive for trainers and employers to ever really explore whether they are helping to reduce harassment.

Fran Sepler, a consultant and trainer who has worked in sexual harassment prevention for more than 30 years, says that trainings that focus mostly on what the law says are not productive and may actually convey that “anything short of illegal behavior is tacitly acceptable.”

“Even though unlawful harassment is a terrible thing and a problem, your odds of being [illegally] harassed are relatively small, say 20 percent for women and less for men,” she explained. “Rude and uncivil behavior — close to 100 percent experience that at some point.” Yet the typical workplace harassment training video shows unrealistic situations that don’t match up with real life. “I show clips of about 50 videos,” Sepler said, “All show people putting their hands on the backs of colleagues.”

In the 1990s, a series of Supreme Court rulings had the effect of giving companies an incentive to do sexual harassment training: liability protection. Linda Seabrook, general counsel and director of legal programs for the non-profit Futures Without Violence said that this was a big factor in the growth of the industry. [Full disclosure: Futures Without Violence has previously provided its programming for ThinkProgress staff and other employees at the Center for American Progress. ThinkProgress is an editorially independent project of the Center for American Progress Action Fund].

“The reason they do sexual harassment training is not prevention,” Seabrook told ThinkProgress. “It’s so they can avail themselves of a certain defense: Faragher-Ellerth.” The term refers to a pair of judicial precedents (Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth) that suggested employers who do trainings can be protected from liability for some sexual harassment that might occur among their employees.

Alas, she said, these trainings on what is prohibited do not solve the problem at all. “I don’t understand how people think that type of training will lead to prevention. It trains you on the law and the employer’s policy. It does not and cannot at all train or educate you on what fosters or facilitates this type of conduct and/or what type of workplace doesn’t allow for this type of conduct.”

A lucrative industry

In 1998, the Los Angeles Times predicted court rulings would soon spur employers to spend big to protect themselves from future liability by providing sexual harassment training to their employees. It cited a projection that “U.S. employers will spend $10 billion annually on employment-law-related training by 2000, up from $5 billion in 1995, with sexual harassment prevention one of the main topics.” Two decades later, one training company told the paper it had received 2,150 requests for its programs in January — over 8 times more than the previous January.

Seabrook said Futures Without Violence has seen a significant increase in the number of “workplace education” sessions it it has been asked to do since the start of the #MeToo movement. But to be successful, she noted, the focus really has to be on building a thriving workplace community: the “deep-seated gender norms,” the sexism, the misogyny, and the anti-LGBTQ sentiments in our society require more than “a one-hour training or a two-hour training once a year.”

Jocelyn Frye, a senior fellow at the Center for American Progress, is an expert on sexual harassment policy. She said there’s growth in the demand for harassment training: “People who do trainings are getting a significant uptick,” she said. And she believes trainings can be a good thing, “but it has to be good training.”

“Nobody funds research”

One of the biggest obstacles to culture change is ignorance — sometimes willful — about what the problems are and what actually helps to solve them. In the past, Frye said, “employers historically have been unwilling to do certain types of assessments because they feared it could be used [against them] in litigation.” And few employers’ harassment training providers have had the ability or volition to find out if their methods are working.

That’s why so few businesses have embraced an evidence-based approach to figuring out what actually works.

“The fact that there isn’t info is itself sort of the news,” said U.S. Equal Employment Opportunity Commission Commissioner (EEOC) Chai Feldblum, who co-chairs the commission’s Select Task Force on the Study of Harassment in the Workplace. She co-authored a 2016 report for that task force, asking, essentially, why the problem remains so pervasive and what can be done about it.

In a telephone interview, she told ThinkProgress, “The fact that the evidence hasn’t shown that the type of training done for a decade [to be effective] doesn’t say training isn’t important. It just says training — in a vacuum — doesn’t seem to have much of an impact.” What limited research there is suggests that some things do help: leadership can change office culture, management can hold people accountable, the organization can set clear policies that go beyond the legalistic, and workplaces can have meaningful training. “We have a sense of what can work… [But] we don’t yet have solid evaluations of each of these things. Certainly not of them as a total package.”

As with all research, money is a factor. “Nobody funds research,” Futures Without Violence’s Seabrook observed. Social scientists “don’t have the resources to do that kind of work,” she said, noting that the EEOC has no research arm and is historically a low-priority department for administrations. Still, she explained, legislation will soon be introduced in Congress to fund research into all types of workplace harassment.

Feldblum agreed and noted another challenge: “We’ve always had two issues: one was get the funding, two was get the subject of the research (the employer) to say yes” to research into their workplace. Unless an employer is willing to let researchers examine the climate of a workplace before and after trainings and other interventions, there is no way to really know if they worked.

Legally, companies could be held liable for holding trainings they know are ineffective, creating a disincentive. But Frye says “it’s better to know your problems than to feign ignorance.”

According to Sepler, a lot of researchers would be “delighted” to do those kinds of examinations if they had the funding. “What if they evaluate a training model and and it shows it is ineffective?” she asked rhetorically. Despite the desire for evidence of results, “no one wants to be the organization where there is data [proving] you’ve been doing something demonstrably ineffective.”

Vicki Magley, a professor of psychology at the University of Connecticut, is one of the few people who has studied which interventions actually succeed at reducing harassment. She observed that most of the assessment of training is done by the vendors themselves — and it is less-than-rigorous data. “I’ve talked to many, many training companies over the past few months who want to tell me all the wonderful things they’re doing with their training. They don’t sound terrible…” she said. “But when I ask, ‘how do you evaluate whether this is doing anything?’, they have no answer.”

“You can ask trainees at the end of a training how well they liked the training, with smiley faces. That doesn’t tell you anything about attitude change, culture change, perceived risk [for reporting harassment],” she said. Instead of a rigorous before/after assessment, participants are mostly asked if the experience was helpful and if the free cookies served were fresh. That sends the message to employees that the company doesn’t take such trainings seriously.

In her own research efforts, she has encountered strong resistance to that sort of before and after study. Recently, she recounted, one organization hired her to evaluate a training but refused to let her evaluate efficacy. “I was being asked to come in and evaluate a training. I was told I couldn’t really evaluate it in the way that was going to be useful because ‘it was going to end up costing too much money and that would just be too expensive.’” With her university bearing the brunt of the costs, she said, she knew “at the end of the day, they just didn’t want to know.”

Magley also noted that many companies use online trainings which are even less evidence-based and can easily be completed by employees with “half an eye and half a heart.”

“If there’s a dearth [of research] on sexual harassment training, there is almost zilch on online training,” she says. “We really don’t know if it does anything.”

A roadmap for employers

Still, state and local lawmakers continue to pass laws making harassment training mandatory, without really taking into account whether it helps. Often these laws require that medium and large employers provide lengthy explanations about the letter of the sexual harassment law. In turn, this increases the incentives for training companies to remain ignorant about whether their in-person or virtual trainings are useful.

Robin Shea, a partner at Constangy, Brooks, Smith & Prophete who tracks state harassment training laws, said in an email that New York State and New York City were the most recent major jurisdictions to enact mandatory training for all major employers. When they go into effect in the upcoming months, New York will join California, Connecticut, Maine, and possibly additional states. “I do expect mandatory harassment training laws to be a hot legislative topic this year and in 2019 because of the #MeToo movement,” she predicted. Earlier this year, Connecticut’s senate, in a bipartisan vote, moved to expand the required two-hour training to employers with at least 20 employees (instead of 50) — though that bill died in the state’s house due to controversy around some other provisions.

But how to actually improve the problem? Feldblum said the EEOC task force report — a series of non-binding recommendations — is a “road map for employers to take.” It recommends an array of steps including greater accountability, new and different approaches to training, and more effective reporting systems.

Among the ideas in the report is a proposal that when employers accused of harassment enter into settlement agreements with the commission, they include requirements that researchers be allowed to work with the employer to assess climate and harassment levels before and after implementations of compliance trainings, civility trainings, and bystander intervention trainings.

So far, she has not seen a huge number of takers. “Even if we find an employer who is willing, we still have to fund it,” she said.

The University of Connecticut’s Magley thinks ultimately the solution may have to come from the judiciary. “Courts need to say, ‘You can do training, that’s a fine thing to do, but if you do that, you need to document that it is effective, that it’s doing what it’s supposed to be doing.’” By requiring that for legal liability protections, organizations would be “held accountable to truly effectively change structures,” rather than “do whatever they can, as cheaply as possible, to check the box.”

With the Trump administration working to pack the federal courts with Clarence Thomases and Sam Alitos who side with businesses over workers in case after case, that shift may not be quick.

“Legal change is a slow-moving train,” she acknowledged, but “hope rests on the shoulders of current law students actively reading this literature and law professors who are training that that type of thinking can start to permeate and change the culture.”

This article was originally published at ThinkProgress on July 25, 2018. Reprinted with permission. 

About the Author: Josh Israel has been senior investigative reporter for ThinkProgress since 2012. Previously, he was a reporter and oversaw money-in-politics reporting at the Center for Public Integrity, was chief researcher for Nick Kotz’s acclaimed 2005 book Judgment Days: Lyndon Baines Johnson, Martin Luther King Jr., and the Laws that Changed America, and was president of the Virginia Partisans Gay & Lesbian Democratic Club. A New England native, Josh received a B.A. in politics from Brandeis University and graduated from the Sorensen Institute for Political Leadership at the University of Virginia, in 2004. He has appeared on cable news and many radio shows across the country.

What Anita Hill did for America

Wednesday, October 27th, 2010

Marcia GreenbergerThis week Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas, called Anita Hill and left a message on her answering machine inviting her to apologize for testifying during Clarence Thomas’ confirmation hearings.

The call brought back, with surprising immediacy, those 1991 hearings. For those too young to remember, the hearings may be little more than a paragraph in a history text. But it’s hard to overstate their importance.

For women at the time, Professor Hill’s testimony was riveting and unforgettable. The country watched on TV as Hill related her personal story — describing the sexual harassment she said she endured while working for Thomas as a federal government employee — before a Judiciary Committee composed entirely of men. Not a single woman senator. (Thomas denied the allegations.)

The issue of sexual harassment was out of the shadows.

Before Hill’s testimony, sexual harassment was viewed as a problem for victims, predominantly women, to solve on their own. Most women suffered in silence rather than jeopardize their careers by complaining, even though sexual harassment had been defined as a form of sex discrimination that could be illegal more than a decade earlier by the courts and the federal Equal Employment Opportunity Commission (or EEOC).

When it first appeared that Professor Hill’s allegations might not even be aired, outraged women jammed congressional switchboards with phone calls, and seven women members of the House of Representatives, including Rep. Eleanor Holmes Norton, Rep. Louise Slaughter and then-Rep. Barbara Boxer (who was elected to the Senate the following year) marched to the Senate to demand a serious and respectful hearing.

Professor Hill was berated and personally attacked during the hearing. Former Wyoming Sen. Alan Simpson waited until Anita Hill’s testimony was concluded to announce, for example, that “I really am getting stuff over the transom about Professor Hill,” without providing any details or substantiation about what he was referring to.

Such treatment became the subject of dinner table conversations around the country, as did the problem of sexual harassment itself. And those conversations continued wherever women met.

Pundits speculated that the Anita Hill testimony would forever intimidate women from ever coming forward again, but the opposite happened.

After the hearings, the number of claims of sexual harassment filed with the federal EEOC (the very agency headed by Clarence Thomas where Anita Hill said he had sexually harassed her) more than doubled between 1991 and 1998 (from 6,883 to 15,618).

And women demanded better legal protection. Congress strengthened remedies for victims of sexual harassment at work by passing the Civil Rights Act of 1991, providing damages for the full range of injuries that victims might suffer and giving victims the right to trial by a jury of her peers.

Major victories in the courts struck blows against widespread sexual harassment that women suffered in the workplace, from the mines to Wall Street. Employers took notice, so that now anti-harassment policies are more robust and company training programs are commonplace.

In the aftermath of Anita Hill’s testimony, Justice Thomas was narrowly confirmed to the Supreme Court by a vote of 52 to 48. In what became known as “the Year of the Woman,” record numbers of women were elected to Congress: 28 women were elected to the House of Representatives, more than doubling the total number of female representatives to 47, and four new women joined the only two women then serving in the Senate.

One of those new female senators from the class of 1992, Dianne Feinstein of California, now sits on the Senate Judiciary Committee. Anita Hill dedicated her career to combating discrimination, including sexual harassment, and opening equal opportunity to all in the workplace and beyond.

The voicemail message from Justice Thomas’s wife is a reminder of a moment in time that put a spotlight on sexual harassment. But our country still needs more discussion about the serious harm it causes.

Sexual harassment has certainly not gone away.

The National Women’s Law Center, for example, recently filed an amicus brief in a lawsuit where a female electrical maintenance technician in a male-dominated workplace says she was constantly harassed — with supervisors and co-workers routinely referring to women with demeaning and derogatory words, displaying provocative photos of naked and partially clothed women in common areas throughout the workplace (and not responding to her repeated requests that the photos be taken down), and excluding her from key daily meetings.

Whether bullying and harassment in schools or making women’s lives miserable in the workplace, it’s time to make sure our laws are strong enough, our institutions committed enough, and our public debate serious enough to give women and girls the protections they need and deserve.

There’s still work to be done. For example, Congress needs to eliminate arbitrary limits on damages for sexual harassment victims and to change current legal standards that make it more difficult for students to prove sexual harassment than other claims of discrimination in schools.

Any less not only does an injustice to women and girls, but to our country as well, which needs the talents and skills of us all to thrive.

The opinions expressed in this commentary are solely those of Marcia Greenberger.

This article was originally posted on CNN.

About The Author: Marcia D. Greenberger is Co-President, and co-founder, of the National Women’s Law Center, which since 1972 has been involved in virtually every major effort to secure and defend women’s rights. She testified at the Senate hearings against the nomination of Clarence Thomas to the Supreme Court based on his record, before the information concerning Anita Hill became public. Anita Hill currently serves as a board member of the National Women’s Law Center.

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