Sex Harassment Training Must Change: The Case for Legal Incentives for Transformative Education and Prevention

In the wake of the #MeToo moment, employers, legislators, and human resources professionals have defaulted to a familiar solution to what seems like an epidemic of workplace harassment: mandatory sex harassment training. The chosen antidote, however, begs an important question that this author posed over 15 years ago: Does sex harassment training actually prevent harassment? My review of the social science research in 2001 revealed no convincing evidence that sex harassment training curbs harassment. In fact, the scant research available indicated that training, as typically conducted in American workplaces, may backfire, triggering stereotypes about women and people of color, and creating resentments. In light of the empirical evidence, this author decried a developing jurisprudence of education and prevention in employment discrimination law that inoculated against liability those employers who provided harassment and diversity training. This essay updates that research, with particular focus on the 2016 report published by the co-chairs of the Equal Employment Opportunity Commission Select Task Force on the Study of Harassment in the Workplace, which failed to conclude that training prevents harassment. The essay reviews suggested changes in training protocols and notes that articles in the popular press questioning the efficacy of harassment training are now common. It argues that the ethos of training and prevention built into sex harassment law has promoted a cosmetic rather than a substantive solution to a serious impediment to equal employment opportunity. The confluence of the #MeToo movement, an important government report with counterintuitive conclusions about training efficacy, and greatly altered public perceptions about harassment prevention presents an opportunity for courts to reevaluate legal doctrines that make training relevant to discrimination claims. The essay concludes that law can incentivize effective interventions for harassment and actual cultural change by refusing to allow training to function as a shield for liability. Creating doctrinal incentives for transformative prevention efforts can strengthen the impact of equal employment opportunity law and make harassment a rare, rather than everyday, phenomenon