Sexual Misconduct Programming Usually Backfires. Here’s What To Do Instead.
Sexual harassment as a concept took root in academic circles in the 1970s. It was the work of feminist legal scholar Catharine A. Mackinnon, especially her groundbreaking study and book Sexual Harassment of Working Women. Before the book, there were no regulations, and definition and responses to sexual harassment in the workplace were disorganized and applied unevenly. Mackinnon framed sexual harassment as a form of sex-based discrimination. In response, the EEOC published amended guidelines under which sexual harassment was declared a violation of Title VII of 1964 Civil Rights Act. The Supreme Court agreed in 1986. The landmark moment that changed how workplaces viewed it came in 1991, during the Supreme Court nomination hearings for Clarence Thomas, when Anita Hill accused Thomas of having sexually harassed her while she was his assistant at the Equal Employment Opportunity Commission. By 1997, 75% of American companies had developed mandatory training programs for all employees to explain what behaviors the law forbids and how to file a complaint, and 95% had put grievance procedures in place for reporting harassment and requesting hearings(1).
Despite that change, the number of people who experience harassment hasn’t really changed. It’s about forty of women – up to 85% over their career, a landmark 2017 EEOC study found – (and 16% of men). Part of that could be shifting definitions and awareness of what sexual harassment and sexual assault are.
To further test the efficacy of the programming, two researcher, Frank Dobbin and Alexandria Kalev, studied of 805 companies (2) to determine if current and aspiring female managers were leaving the job because of sexual harassment and if the training was backfiring, then women should be leaving the job in greater numbers. That study found that training was backfiring, and actually increased worker dissatisfaction and turnover. It also found that grievance programs; that is, processes and procedures for reporting and dealing with sexual harassment, too often resulted in retaliation.
In this article, I’ll first address why the training and grievance programs fail. Second, I’ll describe what to do instead. Lastly, I’ll describe what to avoid.
Why Sexual Harassment Programming Fails:
Training tends to lay the blame on men. That is, it starts with the attitude that men are generally “bad”, and need to be fixed. People don’t generally appreciate being told they’re bad and need fixing, it puts them in defensive mode instead of an openness to listening.
Training increases victim-blaming. Without a deep understanding of how to speak about sexual harassment, there’s a strong unconscious tendency to lay the blame on victims. This is because of the “credibility gap”. Law professor Deborah Tuerkheimer coined the term, and it speaks to the tendency to inflate the believability of the accused, especially if they’re in positions of power, and discount the credibility of the accuser, especially if the accuser is less privileged (eg., of color, LGBTQ+, in a service position or working class).
Grievance Processes fail to protect accusers. The concept behind them is to protect the company from potentially litigious accusers. These were originally designed by legal teams and adapted by HR teams. HR teams and management tend to believe the accused – especially when those teams skew heavily male, according to the Dobbin-Kalev study.
Grievance Processes disproportionately harm women of color. The aforementioned study found that grievance process to declining numbers of women of color in the office: 14% fewer Black/African American women, 10% fewer Latina women, and 10% fewer Asian American women female managers. This is because numerous studies have found that women of color are disproportionately targeted for sexual harassment. In my work in the bay area, I’ve found that Asian-American are targeted at much higher rates.
Grievance Processes increase retaliation. One survey of federal workers found that two-thirds of women who had reported their harassers were subsequently assaulted, taunted, demoted, or fired by their harassers or friends of their harassers. A recent news story about a lesbian police officer, Ashley Cummings, showed that retaliation also led to Cummings not being able to find a job elsewhere. Cummings successfully sued the National City Police Department for sexual harassment and sex-based discrimination, but was unable to find a job elsewhere despite years of experience and an otherwise impressive resume. Through my work in tech, I’ve found the same for women who report or try to raise awareness about ongoing harassment and discrimination.
What To Do Instead:
Balance in the leadership team: more women, more people of color. Through my work, I’ve found that diversity works: in workplaces and communities with more people of color and a balance of genders (men, women, others) have fewer incidents of sexual harassment and assault. The study I cited earlier, by Frank Dobbin and Alexandria Kalev, found the same. Women managers tend to believe accusations, and women of color tend to believe and find other women of color more credible.
Manager Training. Additional training for management and training with employees and managers is more effective than employee training alone. Why? Instead of framing the problem as a “you’re bad” problem, it frames it as a “here’s what you can do when you see/think/know sexual harassment is happening on your team”.
Bystander Training. Bystander training works similarly to manager training: it shifts the language from “you” to “if you see/think/know sexual harassment is happening, here’s what you can do”, and offers a variety of responses. The trainings help bystanders recognize the signs of harassment and boundary-pushing, intercede when they hear the off color joke or the more senior employee refusing to accept the young intern’s no for an after-work drink. It’s not enough to do the checkbox legal bystander trainings required in California and other states: nearly twenty of research by Sharyn Potter and her team at the University of New Hampshire’s Prevention Innovation Research Center have shown that about seven hours of trainings are needed for college students and for army personnel. As well, training that makes employees and managers feel like a team (team-building) and incorporates stories – giving the facts, figures, and basics a memorable human element – are more effective.
An outside/ombuds office for reporting. This is a function I’ve handled for some of the communities and organizations I’ve worked with. In my experience, it increases trust and decreases retaliation. As an independent party, but one that is still tied to the organization, I’m more impartial than a legal or HR team. Still, my education is in law and my background in survivor advocacy, so I can balance legal concerns, and discern and listen to accusers impartially. This increases reporting; and serves as risk mitigation for workplaces (catching the problem of harassment faster reduces risk and likelihood of a later, litigious complainant). Another great example of this is MIT, which set up an ombuds office in 1973. The office found that 90% of accusers wanted an informal and confidential process (something I’ve found as well). Mary Rowe, a labor economist and adjunct professor who served in the MIT ombuds office for forty-two years, found that her ombuds office increased reporting in that most accusers did not want to go through a legalistic grievance process, but favored less formal process. By 2019, thirteen percent of companies, including Uber and the SF Cheesecake Factory, had external ombuds offices.
Culture shifting: As trite as this one sounds, it is THE KEY. In my work, I’ve discovered that organizations with certain cultures — strong social hierarchies, teams on which the individuals feel helpless, disconnected, and disempowered, teams that lack real inclusion — are the ones where sexual misconduct is endemic. Building a healthy, inclusive culture where everyone feels empowered and of value results in less harassment. This goes hand-in-hand with point 1 – diversity of leadership, and addresses all the reasons that typical training and grievance processes fail.
Options to Avoid:
Mandatory Arbitration: Employees are pushing back against them. Many go the legal route after signing mandatory arbitration clauses, and court findings on them have been mixed.
Consent Training and Role Play. Through my work, I’ve found that consent training is especially ineffective: it presumes the problem of harassment is simply a misunderstanding that can be corrected with adequate understanding of consent, which is seldom if ever the case; as well, it provides defenses and loopholes for the accused to explain away harmful behavior. Role play is also ineffective. It both leaves the participants feeling defensive and harmed, and individuals shut down when put through it.
Sources:
Dobbin, Frank and Kalev, Alexandria. Why Sexual Harassment Programs Backfire. Forbes. May-June 2020.
Dobbin, Frank and Kalev, Alexandria. The promise and peril of sexual harassment programs. PNAS. June 3, 2019.
Schur, Edwin M. Labelling Women Deviant: Gender, Stigma, and Social Contract. (New York: Random House, Inc, 1988).
Tuerkheimer, Deborah. Credible, Why We Doubt Accusers and Protect Abusers. (New York: HarperCollins, 2021).