This article first appeared in the January 2018 issue of the Massachusetts Employment Law Letter.
I do a lot of antiharassment training. In the past, much of my training has followed a relatively standard format explaining that Massachusetts employers can be liable for harassment by supervisors even if employees don’t complain and that supervisors can “aid and abet” a hostile work environment by turning a blind eye to problematic situations. I also point out that the fact that no one has protested a sexually charged atmosphere doesn’t mean it’s not a problem for the employer. But the recent flood of news about offensive sexual behavior has caused me to rethink my approach to training.
Times have changed
I’m old enough to remember when sexual harassment wasn’t illegal. I clearly remember getting a back rub from the manager of the small office where I was working as a temp on a college break in 1971, before the U.S. Supreme Court ruled that sexual harassment could be a form of gender discrimination. I didn’t know what to do to oppose the conduct, and I was young and needed the job, so I did nothing. Fortunately, the physical contact went no further than the unwanted back rub. I didn’t complain, which was understandable given the state of the law then.
In 1977, the Supreme Court found that sexual harassment was a form of gender discrimination, and in 1988, the Court included a hostile work environment as a type of sexual harassment that could create liability. But that doesn’t mean that it’s any easier to complain now than it was in 1971.
I’m no shrinking violet
I know that complaining is not easy. I was subjected to sexual harassment after it became illegal, and I didn’t complain about that behavior, either. It was a long time ago, but this time, I was an assertive and competent grown woman. Nonetheless, I didn’t know whether the harasser would have an effect on my career, and I didn’t know whether anyone would believe that the conduct occurred or that it was even a problem. After all, the only physical contact was a relatively innocuous hug. The harasser was a personal friend, so the hug could have been perceived as an innocent exchange between friends. I kept quiet and did my best to avoid contact with the harasser.
But I was afraid. I was being stalked, and when I saw the harasser drive past my house one afternoon, I told my husband. My husband was fabulous. He called the man and told him to leave me alone. If the man didn’t, my husband would make two calls: one to the man’s wife and one to his boss. And that worked. For me.
When my best friend was also subjected to the same harassing conduct, I knew it was time to speak up. We went to management and explained our concerns. Frankly, we didn’t want the man to lose his job. We just wanted the conduct to stop. Management heard us and took action. To my knowledge, no other woman was ever subjected to this conduct.
I use that story during sexual harassment training. I tell supervisors that if I found it hard to complain, imagine how difficult it might be for the women who report to them to complain.
I tell supervisors that, even now, my heart pounds when I tell the story and that they are responsible for ensuring that the women in their workplace don’t ever feel that they can’t go to supervisors or management to complain about harassment or other offensive workplace conduct.
The hole in the front step
Of course, some supervisors are reluctant to be the bad guy and insist on a respectful workplace instead of a sexually charged—or, frankly, even hostile—environment. They reason that since no one has complained, sexual innuendo or “innocent” teasing is not a problem. So when I conduct training, I try to compare the risk to something they can relate to.
Suppose your company is renewing its premises liability insurance coverage, which protects the company if someone is injured while on its property. In most cases, the insurance company will send an inspector to see whether there are any risks that affect coverage. The inspector spots a huge hole in the front staircase as he approaches the entrance. He turns to the company president and says, “What about the hole in the front step?
Don’t you think that’s dangerous?” But the company president responds, “The hole is nothing to worry about because no one has complained about it. Everyone knows it’s there!” Is that a good defense if someone steps in the hole and breaks a leg? Of course not.
The same is true for a workplace environment that is not respectful, regardless of whether the atmosphere is sexually charged or is simply replete with rude comments based on a protected characteristic. Just because no one has objected does not mean that it’s not a problem that needs to be fixed. It’s up to supervisors to insist that their team is free of a hostile work environment, whether it is sexual or is based on another protected characteristic. Frankly, if conduct is not respectful, it doesn’t belong in the workplace. Period.
Thoughts on training
In light of continued news coverage on harassment, I’m revisiting my approach to antiharassment training. A recent article in The New York Times reported on research regarding the efficacy of traditional sexual harassment training. According to the study, traditional forms of training do not achieve the desired effect. Instead, sexual harassment training can actually reinforce gender stereotypes by portraying the harasser as powerful and women as victims. Moreover, individuals receiving training frequently don’t recognize themselves as potential harassers. The issue is not a knowledge problem, said the Times article. It’s a behavior problem.
Creating a culture of respect
The Times article advocates for employers to create a culture of respect—a workplace atmosphere that rejects harassment in all forms. It suggests empowering bystanders to intervene in problematic situations—for example, by articulating objections to offensive jokes or by disrupting situations with a loud noise. Also, bystanders can approach the subject of the harassment to inquire whether the conduct they observed was acceptable.
The article also recommends encouraging basic civility in the workplace by asking training participants to brainstorm respectful behaviors and spotting opportunities to support workers who might be marginalized. Training still has a place, but it needs to be serious, interactive, and frequent.
Senior management or white males participating seems to increase the effectiveness of antiharassment training. Research has also shown that companies that have a high percentage of women in management are less likely to have a problem with sexual harassment, partly because harassment can flourish when men are in power and women aren’t. Even men who are aware of the problem can feel pressured to accept a sexually charged workplace if other male members of management are engaged in offensive behavior.
Encouraging a culture that values complaints, including those about what may be perceived as minor offenses, can be helpful, too. If a company lets small things slide, it will open the door for more serious behaviors to enter the workplace.
It’s time for a change
The recent flood of complaints is a good thing. It has started a dialogue about problematic behavior in the workplace and perhaps has encouraged more women to express their concerns. Now it’s up to us as HR professionals, attorneys, trainers, and members of management to capitalize on this opportunity. We need to ensure that no one is afraid to complain, even small “holes in the front step” are dealt with, and training is updated to help create a culture of respect. Those are my goals going forward in this climate, and I encourage you to adopt them as yours, too.
Susan G. Fentin is of counsel at the firm of Skoler, Abbott & Presser, P.C. She can be reached at 413-737-4753 or firstname.lastname@example.org.