The Risk For Employers Of Sexual Harassment Fatigue

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On October 5, 2017, a New York Times article uncovered multiple sexual harassment complaints against film executive Harvey Weinstein. The article prompted hundreds of women, and some men, to tell their stories of harassment by celebrities and politicians. #MeToo has spread virally as a hashtag on social media. Time magazine named the “Silence Breakers” as its Person of the Year.

This year’s developments have certainly brought the issue of sexual harassment to the forefront of the public consciousness, but not necessarily in a manner supportive of employer efforts to combat harassment in the workplace. Media coverage, for instance, has done little to educate the public as to the meaning of sexual harassment. The focus on sensational stories, such as unwelcome physical contact and quid pro quo harassment (demands for sexual favors as condition of employment), may even leave a misleading impression as to what constitutes harassment. In fact, according to a recent Instamor survey, 1 in 3 men still don’t think catcalling is sexual harassment. The same poll found that 2 in 3 men still don’t regard repeated unwanted invitations to drinks, dinner or dates as sexual harassment. Nearly 1 in 5 men still don’t believe that sexual harassment is a fireable offense.

Furthermore, partisan politics have infected the dialogue regarding sexual harassment. Facts and evidence have often been overshadowed by opinions and social media memes regarding the credibility of accusations and denials.

With no end in sight to the constant media coverage of sexual harassment claims, moreover, a segment of the public will likely grow weary of such coverage, if it has not already done so. Stated differently, some persons will likely succumb to “sexual harassment fatigue.”

Now that sexual harassment is in the spotlight as never before, employers should nevertheless expect greater legal scrutiny of their efforts to combat it in the workplace. This legal scrutiny will likely encompass not just the existence, but also the effectiveness, of training. In a Report published in June 2016, in fact, the EEOC Select Task Force on the Study of Harassment in the Workplace underscored the importance of “effective” harassment training.

As many employers already know, sexual harassment training is frequently met by employees with apathy or ridicule. Indeed, according to a November 15, 2017 article by the Harvard Business Review, “[m]en who score high on a psychological scale for likelihood to harass women come out of training with significantly worse attitudes toward harassment, thinking it is no big deal.” To be sure, there may be employees who will be more inclined to take such training seriously after hearing the stories of alleged victims over the past months. For other employees, however, the recent media storm may prompt the opposite reaction and make them even more apathetic or suspicious towards training.  The challenge for effective training as to this second group of employees, therefore, is overcoming their apathy, suspicions and/or “sexual harassment fatigue.”

The short-term solution may be as simple as a reminder of the personal stake of all employees in maintaining a work environment free of sexual harassment. This personal stake can include continued employment with the employer and personal liability under certain state laws. Indeed, Jonathan Segal is quoted in the June 2016 Report of the EEOC Select Task Force on the Study of Harassment in the Workplace as saying: “[Compliance training] is not training to change your mind. It is training to keep your job.” In short, make it clear that training is a “big deal” for them personally.

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