Winter 2018 WHAT HAPPENED?!?


Five Reasons Why Your Sexual Harassment Training Isn’t Working Sally R. Culley, Linda Bond Edwards, Nicole Sieb Smith Rumberger Kirk & Caldwell


Each day brings news about yet another sexual harassment claim against a high-profile and powerful man. Just to name a few in the broadcasting industry: Bill O’Reilly, Charlie Rose, and now Matt Lauer. As women continue to come forward, all employers should be nervous enough about their own liability to re-think their approach to dealing with sexual harassment in the workplace.


Following the 1998 decision by the United States Supreme Court in Faragher v. City of Boca Raton, a case which in- volved a claim of sexual harassment, employers rushed to implement anti-harassment policies and training. In that case, the Court provided a defense for employers in sexual harassment cases, where the employers (1) implemented a policy prohibiting sexual harassment, (2) trained employees about the policy, (3) took prompt remedial action when a complaint of sexual harassment was received, and (4) proved that the victim failed to take reasonable action to pre- vent the harm. The Faragher decision gave employers a sense of security, because of the thought that anti- harassment policies and training would eradicate harassment or, at minimum, insulate employers from liability for any harassment.


Despite all the efforts businesses have dedicated to formulating policies and implementing training, sexual harassment still happens and employers are still finding themselves potentially liable for such harassment. 21st Century Fox has reportedly paid out $50 million to settle sexual harassment claims made against Fox News during 2016-2017. And a recent study has found that 1 in 3 women aged 18 to 34 has been sexually harassed at work. Even more disturbing, the EEOC has found that “[r]oughly three out of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.” With this in mind, and given all the work that many employers have put forth in response to the Faragher case, the obvious question is: what happened?


Perhaps the answer lies in the anti-harassment training provided by employers. Is the training intended to change the culture of the organization or merely to “check the box?” Do victims really believe the employer will give their com- plaints thoughtful consideration resulting in real change, or will the employer simply slap the harasser on the hand? Real organizational soul-searching may shed some light. If an organization is more concerned with avoiding liability for sexual harassment rather than promoting respectful and safe workplaces that maximize the potential of all employees, the effectiveness of its policies and training will be undercut. No amount of training will overcome a business environ- ment that refuses to acknowledge the existence of unprofessionalism and disrespect. For most employers, though, the following reasons may help to explain why sexual harassment training simply isn’t working. If one of these applies to your organization, then you need a different strategy for your anti-harassment training and the implementation of your anti-harassment policy:


1. Employees do not understand what sexual harassment is. This seems impossible, given the amount of time and effort that employers have invested in training employees on this issue. But the sheer number of sexual harassment claims that are now being asserted, coupled with jaw-dropping be- havior exhibited by the alleged harassers, leads to this inescapable conclusion. Anti-harassment policies should clearly define sexual harassment and should include specific examples of prohibited behavior. Employees need to know and understand that sexual harassment does not always include an unwelcome sexual advance, and that it may include other verbal or physical harassment of a sexual nature or even offensive remarks about a person’s sex. The gender of the harasser can be either male or female, and the same applies to the gender of the victim. Also, the gender of the harasser and the victim can be the same.


2. Only lower-level employees receive training. Many employers provide sexual harassment training only to lower-level employees but excuse management, especially upper-level management, from the training. The message this sends to the workforce is that anti- harassment training really isn’t that important. Limiting who is trained also conveys that the employer is


17 Continued next page


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28