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Last December, Time magazine gave its award for person of the year to the “the silence breakers,” commemorating a broad societal awakening about the pervasiveness of sexual harassment in the workplace. As the #MeToo movement geared up, and as prominent men resigned or were fired, organizations rushed to create or update anti-harassment policies, complaint procedures, and training programs.
This approach may be misguided. Programs, policies, and training alone do not stop sexual harassment and abuse. My book Working Law — based on surveys of organizations, interviews with HR professionals, and content analyses of both human resources journals and federal court opinions — shows that sexual harassment policies and procedures can comfortably coexist in organizational cultures where women are regularly subjected to demeaning commentary, unwanted physical contact, and even threats or sexual assault. In other words, someone can be sexually harassed without recourse in an organization with plenty of rules on the books.
We know, for example, that employees who have experienced harassment are often reticent to use company complaint procedures because they fear retaliation. Some believe that they must put up with harassment in order to get ahead. Research suggests that as few as 25% of women who experience harassment use an internal company complaint procedure or file a complaint with the EEOC. The few who do are often confronted with dismissive complaint handlers who treat their experiences as interpersonal problems or instances of poor management rather than sexual harassment.
But one factor that’s often left out of this conversation is the role the courts have played in shielding companies from legal liability. When a case does manage to reach the legal system, courts will often side with a company due to the mere presence of an official policy, regardless of whether the policy is actually effective in addressing harassment or abuse. I call these policies “symbolic structures,” and they often do more to protect employers from lawsuits than they do to protect employees from harassment.
Consider the case of Leopold v. Baccarat, Inc., decided by a federal trial court in New York in 2000 and affirmed by a federal appeals court in 2001. Andree Leopold, a saleswoman, sued after her supervisor repeatedly threatened to replace her with someone “young and sexy” and referred to saleswomen using vulgar, dismissive language. Baccarat, the employer, pointed to its policy against harassment and its grievance procedure as evidence of fair treatment. Leopold claimed that she did not use the complaint procedure because it would have required her to report the harassment to her immediate supervisor — the person she was accusing of harassment. The policy also lacked a guarantee that she would be protected from retaliation. The court ruled in favor of Baccarat anyway, recognizing that the procedure was inadequate in some ways but nonetheless stating that “the law is very clear that any reasonable policy will do.”
This is just one example. But analyses of a half-century of judicial opinions tell a story of judges who increasingly view the presence of anti-harassment policies and complaint procedures as sufficient for employers to avoid liability, even where there is substantial evidence that harassment occurred. In order to understand why this happened, and is continuing to happen, it’s important to first understand the history of anti-discrimination law and how companies responded to it. In many ways, the current state of court decisions begins in a familiar place: human resources departments.
The Birth of Discrimination and Sexual Harassment Policies
After the passage of the Civil Rights Act of 1964, which prohibited most large employers from discriminating against employees on the basis of race, color, religion, sex, or national origin, companies were in an unfamiliar position. The law did not specify precisely what constituted discrimination or what employers were expected to do. HR professionals and management consultants jumped into the vacuum, promoting a variety of new antidiscrimination policies, complaint procedures, affirmative-action officer positions, and other structures as mechanisms for compliance with civil rights law. Organizations quickly adopted these structures, and by the mid-1970s they came to be widely accepted as evidence of nondiscrimination.
The problem, however, was that the symbolic value of these structures did not depend on their effectiveness. Yes, in some organizations, the presence of antidiscrimination policies and complaint procedures was accompanied by meaningful efforts to reduce bias and to hire and promote minorities, women, and other disenfranchised groups. In many other cases, however, discrimination and inequality was allowed to persist. Over time, the mere presence of these symbolic structures came to be accepted not only by HR and management professionals, but also by lawyers and courts.
It should be no surprise, then, that when sexual harassment became an issue — largely with the 1979 publication of Catharine MacKinnon’s book Sexual Harassment of Working Women and guidelines by the EEOC in 1980 (since updated here) that defined sexual harassment as a form of illegal sex discrimination — organizations followed the practice that had proven successful in compliance with civil rights law.
A good example of this is a 1981 article in Personnel Journal, which is now known as HR Focus. The authors wrote:
If the employer has no knowledge of the harassment, liability may be avoided if two conditions have been met: (1) The employer has a policy discouraging sexual harassment, and the employee failed to use an existing grievance procedure and (2) the sexually harassing situations are rectified as soon as the employer becomes aware of them.
In fact, this was not accepted law at the time. But it did foreshadow later legal developments, beginning in 1986. That’s when the U.S. Supreme Court formally recognized sexual harassment as a form of sex discrimination in Meritor v. Vinson. Although the court found the employer’s anti-harassment policy and complaint procedure ineffective in that case, it did hint that an effective procedure might protect the employer from liability. The Meritor decision, in turn, led to a sharp increase in employers arguing that they should not be liable if they had an anti-harassment policy and complaint procedure in place.
In 1998, the Supreme Court — citing the 1980 EEOC guidelines — explicitly addressed the issue of anti-harassment policies and complaint procedures in the Faragher v. City of Boca Raton and Burlington v. Ellerth cases, which were decided together. The HR profession did not sit back idly during the arguments. The Society for Human Resource Management (SHRM), the field’s professional association, filed an amicus brief in the Faragher case arguing that employers should be afforded legal protection when they create anti-harassment policies. SHRM also wrote that employers, rather than courts, were best suited to address sexual harassment. In its own amicus brief in the Faragher case, the EEOC distinguished between two types of harassment: quid pro quo harassment, in which a supervisor conditions tangible economic benefits on sexual favors, and hostile work environment harassment, in which employees are subjected to unwelcome sexual advances or commentary that is sufficiently severe or pervasive to affect the employee’s ability to perform their job. The EEOC advocated that anti-harassment policies and complaint procedures should be a defense to allegations of sexual harassment in hostile work environment harassment only.
The Supreme Court, in essence, agreed with both SHRM and the EEOC. It created the Faragher-Ellerth affirmative defense, which is nearly identical to the rule articulated in the 1981 Personnel article, with the distinction advanced by the EEOC added. The affirmative defense set forth allows employers to escape liability if they can prove:
a) That the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
The court went on to specify that in most cases, a policy prohibiting sexual harassment and a complaint procedure would satisfy the first prong of the affirmative defense. And so having a policy became a proxy for companies actually doing something to prevent sexual harassment. As a result, it has become almost impossible for an employee to win a hostile work environment case about sex or race harassment. Although the Faragher and Ellerth decisions only apply directly to hostile work environment harassment cases, judicial deference to organizational policies and complaint procedures, which had been increasingly common in all types of discrimination cases even before Faragher and Ellerth, has become even more common since these decisions.
How Do We Know? We Have the Data
My colleagues Linda Krieger, Scott Eliason, Catherine Albiston, and Virginia Mellema, and I collected and coded a representative sample of 1,024 organizational discrimination and harassment court decisions beginning in 1965 — after the passage of the Civil Rights Act — and continuing through 1999. Later, Brent Nakamura and I coded and analyzed a follow-up representative sample of 164 court decisions at five-year intervals after 1999: 2004, 2009, and 2014. We coded references to all types of organizational structures, including what were explicitly antidiscrimination policies and procedures but also more general governance structures, such as formal evaluation procedures or progressive discipline policies. Courts frequently view the latter policies as evidence of rational governance and hence an effort to avoid discrimination. This allowed us to examine the conditions under which judges deferred to the various symbolic structures that organizations created.
We coded a judge as having deferred to the presence of symbolic structures when the judge found the structures to be legally sound yet failed to consider the effectiveness of the structures at all; declared that an inadequate procedure was sufficient; or ignored substantial evidence of discrimination or harassment.
As shown below, judicial deference to symbolic structures increased steadily over time, beginning in the lower courts and traveling up the judicial hierarchy. It originated in federal district court but increased dramatically in the circuit courts of appeals beginning in 1980. Deference increased substantially again after 2000 in both the district and circuit courts. By 2014, judges were deferring to symbolic structures in about 70% of district court cases and nearly 50% of circuit court cases.
Given that judges often rely on the mere presence of anti-harassment policies and complaint procedures, we cannot look to the courts for a solution to the problem that the #MeToo movement has exposed.
What Should Companies Do Next?
If companies truly want to prevent harassment, they need to go beyond policies and procedures. While there’s currently too little research that points to a definitive solution, a 2016 EEOC report makes important recommendations based on social science research by prominent scholars: First, increase the representation of women and people of color at all levels of management. Second, be aware of factors that increase the likelihood of harassment such as power disparities, isolated or decentralized workplaces, a tolerance for alcohol, and prominent or powerful employees who believe that rules do not apply to them.
Perhaps the most important finding in the EEOC report is that workplace culture can have an enormous impact on the prevalence of harassment. Harassment is less likely when leaders make clear that they have a strong commitment to a culture of inclusion and respect for all employees, and when they hold managers and employees accountable for harassment in a fair manner.
Moreover, HR professionals and managers should recognize the many obstacles that inhibit victims of harassment from using company complaint procedures. People who oversee the complaint process should make it as easy as possible for employees to report harassment, protect complainants from retaliation, respond to complaints seriously and swiftly, and take decisive action to sanction harassers. In addition, the EEOC report recommends conducting confidential climate surveys of employees for a better sense of the prevalence of harassment. Of course, survey feedback is useless unless organizational management commits to making necessary changes based on the results.
HR professionals helped to create the system of symbolic structures that the courts now treat as evidence of compliance with civil rights law. They now have the responsibility, alongside other managers and executives, to build a culture of respect and inclusion for all employees, and to ensure that anti-harassment policies are taken seriously and that complaint procedures provide meaningful redress for harassment. The #MeToo movement has mobilized support for change, but toothless policies will not curb harassment without strong efforts by corporate leaders.