SEXUAL HARASSMENT IN THE WORKPLACE:
Do Employers' Efforts Truly Prevent Harassment, Or Just Prevent Liability?

A recent article in the National Law Journal praised Mitsubishi Motor Manufacturing of America, a Japanese car company with a significant presence in the United States, for its remarkable recovery from a dark history of sexual harassment and other civil rights violations. It described Mitsubishi as a "corporate model for training employees about the illegality of harassment and discrimination and investigating complaints when they arise."

What's interesting about Mitsubishi's recovery is that it gives us the chance to ask a forgotten question: Do employer's efforts to prevent harassment actually work, or do they just serve to insulate employers from liability?

Just few years ago, Mitsubishi settled a sexual harassment case with the Equal Employment Opportunity Commission (EEOC), in which widespread and pervasive harassment within the company was alleged. In the settlement, Mitsubishi paid 34 million to the victims in the class represented by the EEOC, and paid several million more to private plaintiffs bringing similar complaints.

Since then, the EEOC has settled other high-profile, big-money sexual harassment suits. Yet the settlement with Mitsubishi still stands out as a reminder to employers of the tremendous consequences of failing to control the workplace.

Driven partly by court orders and partly by economic fear, Mitsubishi did make a noteworthy effort to end the culture of harassment that had enveloped its plant in Normal, Illinois. The evidence in the lawsuit showed an environment in which harassment was as routine and commonplace as coffee breaks. More than 300 female employees joined the suit, complaining of groping, fondling, lewd jokes and behavior, and obscene graffiti plastered in work areas.

The company's post-lawsuit response began with the hiring of former Secretary of Labor Lynn Martin, for a multi-million dollar consulting gig. Martin's job was to oversee a self-audit of the company's EEO practices and environment.

The programs and policies that flowed from Martin's work centered on the adoption and implementation of a zero-tolerance policy. The policy was given teeth by the creation of an entirely separate department, the Opportunity Programs Department (OPD), whose sole function is to train employees about the policy and investigate complaints.

As part of its ongoing anti-harassment program, Mitsubishi requires each employee to attend sexual harassment prevention training every two years. It also has stepped up investigations of complaints and the imposition of discipline on offenders.

Since the adoption of the policy, the company boasts vastly fewer complaints of harassment than before, and points to the significant discipline that has been imposed for those complaints that were proven to be valid.

Why and How Employers Try to Prevent and Correct Harassment

In the past five years, the Supreme Court has decided a number of cases outlining the circumstances under which employers should be held liable for sexual and other forms of harassment, and the converse circumstances under which employers can escape liability even if harassment occurs. (The major cases are Faragher v. City of Boca Raton and Burlington Industries v. Ellerth).

This defense thus creates strong incentives for employers to undertake such efforts, in order to insulate themselves from liability (like that faced by Mitsubishi). Accordingly, an entire industry has grown up around the need for employers to institute these measures.

The industry is comprised of lawyers, consultants, and human resource professionals who focus on advising and aiding companies to create and improve their programs so that if they are sued, they can successfully invoke the affirmative defense. Employers have reacted swiftly to their advice, hastily adopting new policies, procedures, and training programs to comply with the new rules of liability.

The "best practices" for employers working within this legal regime are straightforward. To prevent harassment, employers must adopt a formal, written anti-harassment policy, which describes prohibited conduct, states the employer's opposition to it, and outlines potential disciplinary actions if the conduct nevertheless occurs. The policy must be made available to employees - either disseminated individually, included in the employee handbook, or posted in a public work space. Taking these simple measures, which 90-97 percent of all employers have done, operates as "compelling proof" in some jurisdictions of adequate prevention.

Many employers have also instituted anti-harassment training programs. Unlike policies, training programs are not required by courts, although employers who institute them are given credit for doing so. More than half of employers today provide some form of anti-harassment training.

The emphasis in the law--reflected in how courts evaluate employer's efforts in the context of sexual harassment lawsuits--is on compliance. Employers who have taken appropriate steps to prevent harassment are rewarded via the affirmative defense; those who have not are punished. But little or no emphasis is placed on success--courts rarely ask whether the measures were indeed effective in preventing further incidents of harassment.

That raises the risk of employers' complying with the letter of the law - by taking formal measures to end harassment - but not with its spirit, if the measures do not actually end harassment. It also thwarts Title VII's primary purpose of preventing discrimination from occurring in the first instance.

Do Preventive Measures Work?

Survey data and anecdotal reports make clear that employers, including Mitsubishi, have been quick to respond to the incentives created by the legal regime--as well as to individual lawsuits giving rise to significant damage awards.

But one question that is rarely asked when analyzing the effect of the rules of liability is whether they actually serve to lower the amount of harassment - or whether they simply create a safe harbor for employers who make a few token changes to the workplace environment. Putting up a poster, of course, does not automatically end harassment. Nor does telling employees not to harass ensure that, in fact, they won't.

Other survey evidence supports this conclusion. A recent survey of federal employees, for example, reported that 80 percent of them rated the dissemination of anti-harassment policies as "among the most effective actions an organization can take to reduce or prevent harassment." But only 63 percent, somewhat ironically, thought policies actually changed the way employees behaved toward one another.

Furthermore, despite the high perception of effectiveness, there are no studies showing that exposure to an anti-harassment policy or knowledge of grievance procedures actually deters harassers. Harassers, overcome with sexual attraction or used to treating women in demeaning ways or exploiting power differentials, may simply not care if they are violating the policy. Alternatively, they may assume the policy applies to other people, not them: How can the conduct that seemed innocuous to them for years suddenly be illegal?

Why Training Seems to Work Better Than Publicizing Policies and Procedures

Social science data on training--the one aspect of prevention not required by the law--is more promising. Studies show some evidence of a "training effect," which suggests that individuals can change perceptions of harassment after exposure to various types of training programs. These programs may not only teach them about harassment, but also cause them to pay more attention to the problem and thus make better assessments of when it is occurring. A harasser might even realize, through training, that behavior he has taken for granted as innocuous is in fact illegal, and change his ways.

But one limitation of training, reflected in social science studies, is that it affects different individuals differently. Women tend to be less affected by training than men; individuals with a high propensity to harass tend to be more affected than those with a low propensity to harass.

The studies suggest that more effective training would be adapted not only to particular workplaces, but also to particular employees--a level of individualization that the average employer would not be able or inclined to undertake.

Why Mitsubishi Is A Good, But Not A Perfect, Model

From all reports--including those of an independent monitor, the local EEOC lawyers, and internal sources--Mitsubishi has managed to change its workplace culture to stem the proliferation of harassment. But the measures the company has taken, such as paying six employees full-time to do nothing but deal with problems of harassment, are expensive and unlikely to be replicated by most employers.

The law should encourage employers to replicate one aspect of Mitsubishi's program--a serious, internal assessment, using outside consultants, of a company's harassment problem and the measures that are most likely to eradicate it. In addition, the law should begin to focus not on whether the employer took standard preventative measures, but on whether they took effective measures.

The affirmative defense, for instance, should be more difficult to invoke, so that employers must take effective, substantial efforts that are proven to have success. Only with a showing of such accomplishments should an employer be able to avoid liability for harassment at the hands of its own employees.