Can Sexual-Harassment Training Stop the Next Les Moonves?

I give prevention seminars. I think they’re theater, but they’re more than that, too.

Les Moonves and Harvey Weinstein
Chip East / Reuters

For the past 12 years, I’ve offered a two-hour sexual-harassment-prevention course to supervisors at corporations and churches, schools and charities, police departments and law firms. I’ve talked about sexual harassment in sweltering community centers and classrooms that smelled of feet, hushed chapels, and posh executive boardrooms. I’ve been met with disconcerting enthusiasm and glaring hostility and everything in between. Office dogs have sat on my feet as I’ve explained hostile work environments, pastors have asked me to give examples of prohibited “sexual gestures,” and I’ve lectured a roomful of lawyers about propriety with my fly down.

I get a lot more questions about that course than I used to—I suppose because powerful people have only recently begun to encounter limits on their abusive behavior. The latest to fall in the wake of the #MeToo movement is, of course, the CBS power broker Les Moonves.

But when they discover my side hustle—most days, I’m a litigator— people don’t ask me about the most outrageous question I’ve heard, or the most hostile reaction I’ve drawn. Instead, they ask me: Does it work, or is it mere theater?

My answer is: Both.

I address the “What’s the point?” issue every time I give my presentation. I always start by telling my audience the 85/10/5 rule. Here’s the rule: 85 percent of you don’t need training and if left alone, you won’t sexually harass anyone. You don’t need to listen to me for two hours; you’re the collateral damage here. Then there’s the 10 percent of you who might sexually harass a colleague, but you can be convinced not to. Congratulations! You’re teachable. Finally, there’s the 5 percent of you — the 5 percent of humanity that assures steady work to lawyers and emergency-room doctors. You will always do whatever amuses you. But, if you sit through my training, we can prove we tried.

That’s legally significant.

When that 5 percent of humanity acts badly, employers that have required training are in a much better legal position than those that haven’t. Employers are automatically legally responsible when supervisors harass employees. But they’re not responsible for harassment by non-supervisors unless they knew or should have known about the harassment and failed to take prompt and appropriate corrective action. Training doesn’t merely help the 10 percent learn to behave—it reduces liability when the 5 percent harass, because it shows that the employer did everything it could to prevent, address, and remedy harassment. Moreover, if an employer trains employees on complaint procedures and the employee doesn’t follow them (for instance, by not complaining about the harassment until after he or she has left the company), the employee’s legal remedies are dramatically limited.

Training is also key to managing an employer’s supervisors. Supervisors are just as prone to fall into that 10 percent or 5 percent as anyone else, as recent events have shown. It’s essential to reach out to the 10 percent of supervisors who are fallible but educable, because their employer is automatically on the hook for any harassing behavior. Even more important, supervisors are usually the ones who receive and investigate an employee’s sexual-harassment complaints, and then need to know how to handle that legal minefield.

It’s entirely possible to turn a minor dispute into a million-dollar case. Just as the cover-up is often more perilous than the crime, employers’ incompetence or indifference in the face of complaints is often more harmful than the content of the complaints. For instance, it’s essential to train supervisors not to do anything that could be misconstrued as illegal retaliation—like moving the complaining employee to a less desirable position away from the accused harasser in a well-intentioned effort to protect him or her.

So, yes, sexual-harassment training does work, in the sense that it helps employers manage legal liability. But done right, it also works by changing attitudes. The most common attitude I encounter is anxiety. My audiences have heard that anyone can be sued for anything, that harassment law is some sinister feminist plot, that well-intentioned people are crushed by the legal system, and that “the rules” are ridiculous and unworkable. These are distortions, told for ratings and political advantage. It’s possible to counter them, and to convince employees that the norms of workplace behavior are reasonable and achievable.

Sexual-harassment law springs from our opposition to discrimination—from the notion that we shouldn’t treat people differently at work because of their gender or race or religion. For all of our bitter strife, this concept resonates with Americans. Whether I couch the idea in terms of fundamental fairness or meritocracy or workplace harmony or—for some audiences—religious values, employees are ready to accept an obligation to follow workplace norms when they see them as about decency and nondiscrimination, and not about conformity or politics.

Employees also respond to real people’s stories. Even audiences that begin the training with folded arms and closed minds can be moved when they hear about someone like Janet Orlando, who had to fight a lengthy legal battle after she was spanked and demeaned in front of a crowd of co-workers. Employees conditioned by talk radio to believe that sexual-harassment law punishes trifles can end the session appalled at the sort of conduct that’s escaped legal consequences. The right training doesn’t just tell employees what the rules are, it convinces them they can follow those rules.

Okay, I’ll share the most outrageous question and the most hostile reaction. A supervisor once asked me if he could hold a team-building exercise at a nudist camp. And a police sergeant turned an angry red when some wiseass lawyer told him he couldn’t tape pornography to his locker.