In the early 1990s, sexual harassment prevention training became big business. As a management attorney, I was often asked to give presentations on the topic. Dressed in my darkest three-piece suit, I would lecture employees about the evils of workplace harassment and what would befall them if they were guilty of it: loss of job, career, reputation and more. I shared the legalistic definitions provided by courts and the Equal Employment Opportunity Commission (EEOC), told horror stories of actual cases and warned employees that retaliation and other forms of harassment were likewise prohibited.
Fast forward to today. Workplace sexual harassment is still very much a reality despite an ocean of preventive investment. Why? There are many explanations.
Here, however, I’ll focus on just one. I believe that the conventional approach to sexual harassment prevention has been fundamentally misguided since its inception. It’s based on deterrence: If you engage in this behavior, there will be harsh consequences for you. Crime won’t pay.
In addition, the conventional approach tends to be legalistic, focusing on the latest EEOC or court definitions of a hostile environment and quid pro quo harassment.
“To stop workplace harassment by focusing on laws, policies and enforcement is like trying to encourage respect and kindness by inflicting pain,” said Paul Jones, chief people officer at USANA Health Sciences in Salt Lake City. “We get defensiveness and self-preservation rather than true, genuine, heartfelt changes in behaviors and attitudes.”
During my career, I’ve encountered innumerable sexual harassment problems. A key takeaway? In the overwhelming majority of cases, the harasser or alleged harasser doesn’t believe what he is doing constitutes sexual harassment. (I use the male pronoun deliberately. Although I have dealt with a few cases in which the harasser was not male, the sexual harasser constituency continues to be male-dominated.)
Essentially, these men build up in their minds a set of rationalizations that enable them to tell themselves that what they’re doing doesn’t meet the legal harassment test. Therefore, they “reason,” their behavior is perfectly acceptable. I have observed these rationalizations being made even by serial predators who nonetheless genuinely consider themselves innocent of any wrongdoing.
Based on these experiences, I predict that workplace sexual harassment will continue to exist no matter how many anti-harassment policies are enacted and no matter how many anti-harassment classes are held.
Shift the Focus
So, what’s the answer? It’s to shift the focus from deterring harassment to promoting a better workplace.
Instead of obsessing over legal compliance, emphasize the necessity that in your organization, dignity, respect and professionalism are paramount. Whether a person’s behavior meets the legal harassment test isn’t the relevant question. Instead, it’s whether a person’s behavior supports their organization’s commitment that everyone at all times be treated with dignity, respect and professionalism.
Set the bar there. Place this guideline at the center of your policies, training, coaching and enforcement efforts. Make it a nonnegotiable core value.
One company that has made such a shift by going beyond existing standard policies is 1-800 Contacts, based in Draper, Utah, with facilities in several other states. The company’s policy is titled “Commitment to Mutual Respect,” and it makes plain its intent: “When it comes to treatment of others, we set the bar high. We believe that all associates are entitled to a safe and secure work environment where we treat each other with respect, dignity and professionalism at all times. This document expresses the commitment we make to create and cultivate such an environment.”
The policy includes elements of conventional anti-harassment guidelines, such as multiple reporting options, a confidential third-party contact option and prohibitions against retaliation. However, it also addresses things not commonly found in conventional policies, including instructing workers to avoid such rationalizations as “I wasn’t the first to tell an off-color joke,” “I only made fun of my own race” or “No one complained or seemed uncomfortable.”
The policy emphasizes the necessity of civility, which includes “exercising emotional self-control and sensitivity to the feelings of others. When differences arise, address them with a constructive, problem-solving approach, not with blame or judgment.”
While making it clear that self-help is never required, 1-800 Contacts’ policy provides an option: “In some circumstances, directly confronting the offender can be effective. You matter-of-factly: (1) Point out the specific problematic behavior; (2) Briefly describe its impact, e.g., ‘When you say _____________, it makes me uncomfortable’; and (3) Ask the person not to repeat this behavior in the future.”
The policy encourages bystanders to report problematic behavior—not as tattling, but as each person’s commitment to ensuring a psychologically safe workplace.
“Before we enacted this policy, we felt there was a misalignment between HR practices and our corporate culture. Although we still have employee-related challenges, we’ve found that employees joining our organization no longer feel this disconnect,” said Dustin Dipo, 1-800 Contacts’ director of people operations. He added that employees have been surprised by the mutual respect commitment because it’s atypical from what they would normally expect.
“Rather than a list of do’s and don’ts, which can never be comprehensive, we tried to elevate the behavioral standard.” Dipo explained. “One associate said it felt like they were no longer being treated like children. Our culture is people who take care of people, and it’s impossible to truly take care of people if they feel disrespected. Although we aren’t perfect at it, our aim in HR has been to create a culture of respect and our focus is on creating an environment where everyone feels valued. The Commitment to Mutual Respect policy does just that.”
Focus on Civility
Over the years, Paul Buchanan, an attorney in Portland, Ore., has represented both plaintiffs and defendants in sexual harassment cases. He noted that late U.S. Supreme Court Justice Antonin Scalia famously stated in a 1998 decision that anti-discrimination laws were not intended to expand “into a general civility code for the American workplace.” Yet in Buchanan’s experience, civility is exactly what’s needed.
“When employers maintain a standard of mutual respect and an expectation that employees treat others with dignity, they are very unlikely to find themselves crossing legal lines into unlawful discriminatory harassment of any kind,” he said.
Buchanan noted that adopting a standard of civility “makes sense from all kinds of perspectives—only one of which is a legal perspective, and that’s not even the most important one, in my view—to train and expect employees at all levels of the organization to meet a much higher threshold of conduct than not violating laws on harassment and discrimination.”
If we’re serious about eliminating workplace harassment, we need to identify the right target. It’s not legal compliance. It’s basic, fundamental dignity, respect, professionalism and, in Buchanan’s words, civility.
Jathan Janove, J.D., is the author of Hard-Won Wisdom: True Stories from the Management Trenches (HarperCollins/Amacom, 2017). He is president of the Oregon Organization Development Network and was named in Inc. magazine as one of the Top 100 Leadership Speakers for 2018. If you have questions or suggestions for topics for future columns, write to firstname.lastname@example.org.