How Our Anti-Harassment Enforcement Machine Churns Out “High Value Harassers”

Time Magazine just named the “Silence Breakers,” harbingers of the #MeToo movement, as its 2017 Persons of the Year.  According to Time, the #MeToo movement marks a watershed moment in American labor history that will end workplace sexual harassment once and for all. Because of the #MeToo movement, TV pundits have speculated, women now feel empowered to speak up about harassment and as a consequence, companies will immediately clamp down on “High Value Harassers” like Harvey Weinstein, Matt Lauer, Charlie Rose, Roy Moore, Al Franken, Glen Thrush, Louis CK, Jeffrey Tambor, Kevin Spacey, Bill O’Reilly, Donald Trump . . . and . . .

Um, not exactly. My cynicism comes not just from a jaundiced view of the Nature of Man, but also from experience: three years as an EEOC prosecutor (1997-2000) and 17 years representing EMPLOYERS (e.g. big ones, small ones and in between). As a civil rights geek, I’ve also researched and written extensively about whether our model for enforcing anti-discrimination and anti-harassment laws–namely, the Civil Rights Act of 1991–has WORKED to deliver on Title VII’s promise of equal employment opportunity (EEO) for all, HERE.

And the truth is, our model for preventing and addressing workplace sexual harassment has become a silly Sylvester McMonkey McBean Machine in which nothing much changes except money changing hands . . . between employers, insurance carriers, and lawyers.

In the classic Dr. Seuss tale “Sneetches,” Sylvester McMonkey McBean built a special machine to resolve tensions between Sneetches who had bellies with stars, and Sneetches who had none upon thars. McBean’s machine could apply AND remove stars . . . for a handsome fee. Eventually, after every last cent of their money was spent, the Sneetches figured out that they’d been tricked: the machine really did nothing at all.

Our anti-harassment enforcement machine is just another contraption in which nothing much changes except money changing hands.

In our Sylvester McMonkey McBean Sexual Harassment contraption, allegations of sexual harassment go into the machine, which spits out M-O-N-E-Y, confidentiality and non-disclosure agreements (NDA’s), and “divorces” that end the employment relationship forever. And each time a victim of workplace harassment gets run through the machine, the harasser grows bigger, stronger, and bolder in his serial harassment of women. He knows that he is a “High Value Harasser,” the subject of a carefully contemplated cost-benefit calculation that prompts companies to set aside financial reserves and buy more expensive Employment Practices Liability (EPL) insurance to mitigate the KNOWN RISK. For organizations protecting High Value Harassers, the decision is purely economic: the worth of the High Value Harasser exceeds the cost of paying out sexual harassment claims.

Yep That’s Harassment Indeed!” tells the story of the “High Value Harasser” in musical form–stay tuned for the video! In this song, the listener initially wonders whether the creep realizes that he’s a creepy harasser; the last verse, however, explains his thinking:

Now, I make them good money
So I’ll get my honey
Whenever and wherever I please

Just write me up
Like legal makeup
The lawyers we need to appease

We’ll write a check
Who gives a heck?
We set aside cash for these fees

When money matters
The owners would rather
Pay off silly claims like these

Because of this reality, High Value Harassers have preyed upon women in the workplace for generations. After all, sexual harassment has been illegal since 1986, when the U.S. Supreme Court decided Meritor Savings Bank v. Vinson, the first case to find that sexual harassment violated Title VII. Since 1986, an entire industry of anti-harassment training emerged, making annual anti-harassment training the industry standard for claim prevention. But training has not prevented High Value Harassers from pursuing women at work, nor has it reduced EEOC claims alleging sexual harassment. Given the sheer volume of #MeToo reports over the past 30 years, reasonable minds would likely agree that what we’re doing to prevent and address workplace harassment is NOT WORKING. Millions over dollars in settlement of sexual harassment claims have changed hands, but the harassment has not stopped . . . or even changed.

I know why, after looking at this issue from BOTH sides (e.g. as an EEOC prosecutor and longtime employment defense lawyer) for over 20 years. And here’s how I would tweak our Sylvester McMonkey McBean Sexual Harassment Machine:

I.  Exclude “Sexual Harassment” from Employment Practices Liability (EPL) Coverage

When Congress passed the Civil Rights Act of 1991 in November 1991 (i.e. after the contentious Clarence Thomas-Anita Hill hearings), the insurance industry recognized an opportunity; after all, where there is RISK, they purport to offer a REMEDY, right? Thus, with CRA 1991’s introduction of jury trials, punitive and compensatory damages, and attorneys’ fees as enforcement tools, more and more insurance carriers started offering Employment Practices Liability coverage  to mitigate the costs (attorneys’ fees) and risks (judgments, settlements) of discrimination and harassment claims. Twenty-five years after CRA 1991, most employers (over 80%) now have some kind of EPL insurance to cover attorneys’ fees and settlements related to sexual harassment claims. By design, EPL insurance took the sting out of the stick of CRA 1991’s enhanced remedies.

Sexual harassment, however, is an INTENTIONAL and DELIBERATE act, unlike the other kinds of hazards and “accidents” for which employers purchase liability insurance (e.g. premises liability, workers’ compensation, malpractice). Indeed, the whole theory behind business liability insurance is that despite our best efforts, accidents happen even when we are not behaving negligently: people slip, things break, employees get hurt. But sexual harassment is quite different: sexual harassment is a deliberate effort to demean women and define them sexually as a “piece of meat” instead of as a peer or typically, as an intellectual superior. Men’s choice to view women in sexual terms is designed to humiliate, to reinforce that no matter how smart, talented, hard-working and worthy they are, the existing male-dominated power structure will NEVER take them seriously. I felt that way each time the Regional Attorney of the EEOC’s Denver Office told me that, despite my JD/MSW degrees as a civil rights fellow at Washington University in St. Louis, he’d hired me because of my “pretty blue eyes” and/or because “I was easy on the eyes.”

Insurance is simply not available for other INTENTIONAL and DELIBERATE acts or torts like assault, battery, murder, false imprisonment, etc. Can you imagine trying to buy insurance in case you decide to beat up or murder your neighbor? No doubt, if such insurance existed, insurance carriers would sell it and people (especially in the South) would buy it. Such policies do not exist, however, because they offend our public policy favoring the imposition of penalties for intentional or reckless violent behavior. Congress could, through legislation, effectively nullify all EPL coverage for employee sexual harassment claims as against public policy, which would FORCE employers to take active measures to prevent, respond to, and immediately correct workplace harassment. Sexual harassment is PREVENTABLE, but only in organizations that take it seriously through annual training, a strong reporting infrastructure, prompt quality investigations, and punishment for substantiated harassment.

II.  Dethrone “High Value Harassers”

Organizations construct entire systems to protect their High Value Harassers. In large self-insured organizations, the C-Suite has already set aside substantial reserves to pay out sexual harassment claims anticipated from a KNOWN RISK like Bill O’Reilly, Bill Cosby, Harvey Weinstein . . . in the cases of celebrity serial harassers like Charlie Rose, Kevin Spacey, Louis CK and others, their personal harassment risk factors into their contract negotiations. Thus, when the sexual harassment and assault complaints inevitably come, they get processed through the Sylvester McMonkey McBean Sexual Harassment Machine with little, if any, impact on the bottom line: reserved funds get paid out, confidentiality agreements get signed, and the serial harasser gets back to the business of harassing . . . with impunity.

Employers, especially public and publicly-traded ones, can no longer afford High Value Harassers. As recent events illustrate, High Value Harassers cost organizations more than money: they squander immeasurable amounts in public goodwill, credibility, productivity and talent that leaves for greener, non-groping pastures.

III.  Recognize the Psychodynamics of Harassment

Sexual harassment has become the business of lawyers. Over the past 25 years, however, lawyers have not proven terribly effective at leveling the playing field and/or at eradicating sexual harassment from our workplaces. Legal tools do not always fix social problems, as we have seen with drug addiction, domestic violence, inequitable opportunity, etc. Thus, we MUST invite other experts to the discussion, including social and industrial psychologists, HR executives, andragogy (adult learning) professionals, artists, poets, shamans, etc. These other experts would reveal a universal truth about sexual harassment, a conclusion they all reached from different paths:

Harassers never perceive their own conduct as harassing.

And never means never. Because of cognitive dissonance (a psychological phenomenon afflicting us all), “Harassers” cannot imagine the possibility that (1) their attention or affection is unwelcome and/or (2) their audience could hear or experience a different message than they intended. Over 20 years, I’ve heard just about everything:

  • I was just kidding! Don’t be so sensitive!
  • I was complimenting her when I said she had a great ass!
  • I did not harass her; I just said I wanted to have sex with her.
  • It’s just locker room talk or horseplay!
  • When you’re a star, they let you do anything.
  • I thought she’d be flattered–I don’t invite just anyone to my room to watch me jerk off.

Effective training on sexual harassment challenges potential harassers to consider the possible disconnect between their intended message and the “heard” message; to understand the power dynamics that color every interaction with a subordinate; to embrace the reality that MOST women find sexual overtures really off-putting and demeaning at work; to accept that sexual harassment can jeopardize their careers and credibility just about more than anything else, etc. Effective sexual harassment training, therefore, draws on other tools borrowed from other disciplines like psychology, social psychology, management, and even law enforcement.

At this stage of our journey toward equal opportunity and harassment-free workplaces, we MUST evaluate and modify our methods, methods that have not proven terribly effective over the past 25 years. Otherwise, we will perpetuate a Sylvester McMonkey McBean Sexual Harassment Machine in which a substantial amount of money changes hands between employers, insurance carriers, and lawyers, but nothing else changes for the women in our workplaces. We need to deconstruct a sham machine that has tricked us into believing that it is “doing something” other than collecting and spitting out money, while enriching the insurance, HR, and legal industries.

Three Short Stories about “Harassment”

Whenever I’m facilitating one of‘s management courses on “harassment,” I like to ask participants

Have any of you ever been accused of harassment?

Most folks immediately avert their gaze before I even finish the question–i.e., to check for an important email, Facebook post, or nearby Pokemon, right?  It looks like this:


It’s a tough question to answer publicly.  And so, after making clear that I’m just teasing them, I share my personal stories about “harassment,” from all the lenses through which I’ve seen and experienced “IT.”  At that moment, eye contact returns and the thick fog of tension in the room dissipates.

#1:  Accused at the EEOC

I launched my legal career at the EEOC’s Denver District Office, a freshly-minted attorney with an MSW in civil rights. I was insufferable. In any case, I quickly learned to despise the weekly attorney meetings at the EEOC: as more of a “directing-guiding” personality, the chit-chat and lack of clear goals, objectives, and action items drove me bonkers.

And so, one Monday morning, as my attorney teammates shuffled into the law library for our weekly meeting, I spoke these words to my African-American colleague, “Elston”:

Elston, it looks like you’re also having a tough time dragging your sorry ass in here today for the attorney meeting!

In a perfect world like the movies, a disembodied Morgan Freeman voice-over would have alerted everyone of the situation’s critical subtext:


What Elston does not know is that Merrily grew up in St. Louis and had used this phrase–“dragging your sorry ass”–regularly with both African-American and white friends. 

But, life does not come with explanatory Morgan Freeman voice-overs, leaving us to our own interpretive biases and faulty attributions.  See, Elston occupied the office next to mine, but kept to himself . . . I reasoned that Elston’s aloofness accounted for his longevity at the EEOC: he’d outlasted several generations of attorneys in the EEOC’s Denver legal department.  I knew very little about him (except that he listened to “I Believe I Can Fly” every morning as one of his rituals), but I respected his seniority and wanted him to mentor me.  After all, the learning curve is STEEP for young government lawyers.

I do not specifically recall Elston’s reaction to my comment, but I remember hearing some chuckles from colleagues who still found my distaste for meetings somewhat charming.  Nevertheless, about four hours later, these words appeared across my computer screen in the subject line of an email from Elston to my bosses and me:

Potential Hostile Work Environment

I read the rest of Elston’s email and then puked.  Elston interpreted my comment as racist because, according to him, “dragging your sorry ass” is a phrase created by African-Americans for the use of African-Americans.  Because I am not African-American, Elston reasoned, I must have used the phrase pejoratively, to make fun of him.

I was devastated.  I cared (and still do) deeply about equal employment opportunity (EEO), especially about advancing the March for African-Americans: caring about EEO forms a big part of my “self-concept,” and so, the accusation hit me really hard, like it does every other human I’ve encountered thus far.  But more importantly to me, I never meant to hurt Elston’s feelings; on the contrary, I was trying to connect with him . . .

In any case, my supervisors put me on investigative leave and I spent the next two days soul-sick in my apartment imprudently looking for shelter pets to adopt in atonement. On the third day, I met with my supervisors, both of whom were, coincidentally, middle aged African-American men like Elston. To this day, I’m grateful for their patience and empathy–I was a blubbering mess. During our meeting, they disclosed Elston’s admission that he had not been happy with previous retirement offers and wanted to add some tension to their negotiations . . . and a racial harassment charge would surely do the trick. I was a pawn in a larger plan.

With that admission, the matter was over as quickly as it started. Like the 95% of people accused of harassment each year, I’d been exonerated, but still damaged–e.g., uglier, crustier, less trusting. Elston and I continued to work “in proximity” for many months afterwards at the EEOC, although never together. My effort to draw Elston closer had only alienated him further,and sadly, further outreach seemed rationally unsafe. And so, I learned to deal with Elston like a “risk,” treating him with a level of formality that only deepened the divide between us . . . because that’s what happens when you’re accused of harassment–you learn to protect yourself.  And that’s a message managers must hear.

#2: Scrotum Jokes at the Christmas Party

Several years after I’d left the EEOC and switched sides to a defense practice, I found myself blessed to work among several of the best litigators in Colorado. Unfortunately, I was the only girl in my little ragtag clique of irreverent smart-asses who saw the sick humor in our work.  Employment law is often amusing, which explains why I write folk songs about it.

So, in the middle of the holiday season when the office was a Ghost Town, my little clique decided to treat ourselves to an early Happy Hour at lunchtime. As usual, I was THRILLED to be included: not only did I find these guys hilarious, but we also regularly consulted with each other when things got tricky in our cases.

At some point in the endless riffing (which included welcomed riffing on each other), my colleagues all started telling jokes about their scrotums (scroti?).  As I girl, I had very little to contribute to this part of the conversation, but I was enjoying the humorous dialog anyway.  And then, I realized I’d tuned them out to listen to my inner voice, which suddenly sounded like a resentful Jan Brady from The Brady Bunch:

Jan Brady

Scrotums are naughty boy parts, right? Why are they talking about them? 

Scrotums, Scrotums, Scrotums!

Is this harassment?

By the time I’d tuned back in to the conversation, the group had moved on to safer lunchtime topics, like the appropriate settlement value of a gnarly wrongful death case. But I quickly dismissed the notion that I’d been the “victim” of “harassment” because of my proximity to an NC-17 conversation; after all, I’m an adult.  At no time did my male colleagues seek to diminish me, to make me feel like less than a peer (despite my obvious handicap of not having a scrotum). It was like being the tomboy sister around a group of brothers who, at least in my mind, (a) thought of me as “one of the guys” or (b) feared verbal humiliation if the sex-talk ever got personal. And it never did.  I’ve since acted as their employment counsel when they formed their own firm, enjoying a friendly professional relationship that has almost spanned two decades.

I have, however, contemplated my inherent power in that situation to TAKE OFFENSE and more pointedly, to cause them trouble simply by interpreting their conduct differently and/or attributing nefarious motivations to it.  After all, ALL harassment lies in the eyes of the Accuser–namely, to satisfy the threshold legal element of “unwelcomeness.”  If I took offense or considered myself a “victim,” I wielded the power of attribution, even faulty attribution.

Indeed, fundamental attribution error (a/k/a “correspondence bias”) is one of the basic tenets of social psychology.  It holds that in explaining the behavior of other people, we have a tendency to overemphasize personal traits (i.e., disposition) and to de-emphasize situational factors . . . BUT when explaining our OWN behavior, we humans consistently focus on situational factors, not dispositional ones.

For example, how many times have you screamed “Asshole!” at another driver instead of thinking

  • Perhaps they’re rushing to the hospital to have a baby!
  • I’ll bet he’s just late for work today.
  • Maybe he did not see me.

And yet, social psychology studies confirm that when WE OURSELVES are the “Asshole” in traffic (and we all are occasionally), we will say to ourselves and others:

  • I did not see that car.
  • I’m late for work and could get written up.
  • Hurry! Faster! Screw the signals! We’re having a baby!

Check out this example:


Fundamental attribution error is pervasive in American thinking and it’s CULTURAL, meaning social psychologists have observed different attributional thinking patterns in other cultures.  Yet, when contemplated in conjunction with cognitive psychology principles like “cognitive dissonance,” “rationalization,” and a whole host of recognized “cognitive biases,” a central truth about sexual harassment emerges:

We seldom perceive our own conduct as harassing, but are often quick to assign those attributions (i.e., harassing pig) and motivations (i.e., harassment) to other people’s behavior.

Particularly in that regard, the foundation of sexual harassment jurisprudence has been built on logical and psychological distortions. FAE#3: My Sweet, Sexy Voice

Years later (and actually not that long ago), I picked up a new “wrongful discharge” and “whistle-blowing” case against a rural Colorado non-profit organization and each member of its volunteer Board of Directors in their individual/personal capacities. As an old social worker, I harbor strong negative opinions about trial lawyers who go after volunteer non-profit Board members. Indeed, decent attorneys on both sides of the bar would likely agree that naming un-paid volunteers as individual defendants is a SCUM-BAG maneuver, absent truly “willful and wanton conduct” like child sex abuse. In my new case, the naming of individual volunteers as Defendants particularly pissed me off because the Complaint stated that each member acted within the scope of their authority at all times.

Nevertheless, as was my practice (and as actually required by rule), I picked up the phone to contact plaintiff’s counsel to introduce myself, to talk about points of agreement and contention, and to discuss case scheduling.  I knew nothing about my new opponent because he lacked a website and online presence, but I correctly surmised that he was an older gentlemen based upon his low attorney registration number.

The conversation started off normally, at least from my perspective.  And at some point, I directly asked,

“Help me understand why you’re going after these volunteers in their individual capacities? I can get them dismissed, but not before they’ll have to bear the expense of preparing the proper pleadings.  What’s your thinking?” 

Instead of a response, my opponent stated

How old are you? You sound so young.  I cannot get over the sound of your sweet sexy voice.

This event marks one of the very few occasions in which I’ve been knocked speechless. In fact, I was not “young;” on the contrary, 15 years of litigation had hardened me into an old crusty Battleaxe.  But I was knocked speechless simply because I had no idea what to do or say next–I had no “event schema” for this kind of treatment by another attorney.

And so, I asked him to repeat himself.  He obliged. I’m not entirely sure what happened next, except that I could see my colleagues coming out of their offices to look at me through the glass in my door while I raged into the phone.  My voice, I imagine, probably sounded very much like Elizabeth Warren responding to a Donald Trump attack, like below.


I do, however, remember hanging up on him.  He called back immediately and I sent the call immediately to voicemail.  I needed to calm down and reclaim my wits for a few moments because I was reeling inside: instead of treating me like peer intent on kicking his ass, he treated me like a hooker, deliberately sexualizing a business conversation to make me feel small, like a piece of meat.  His comments meant, “I will define you sexually, not professionally, and I have the power to do that.”

After I pulled myself together, I noticed the voicemail light blinking on my phone. And much to my utter horror and amusement, he left a rather lengthy voicemail message . . . again making reference to my “sweet sexy voice,” a few times, actually.  And so, I did what any decent litigator would have done: I had the recording transcribed and I cited that transcript liberally in every motion in which he sought to have me sanctioned for not giving in to him (which is most of them).

Throughout the litigation, my septuagenarian opponent insulted me, even encouraging his client and her spouse to do so as well. He called me “bitch” several times to my face and often within earshot when talking about me to others.  He contacted my old white guy bosses at Biglaw to tell them that I was “uncivil” and “taking irrational positions” in my case so that they would put internal pressure on me. He grieved me to Colorado’s disciplinary counsel for truly silly reasons. And during a deposition attended by several witnesses, stated that he would “knock me out” if he thought he could get away with it.  Thereafter, we put the local sheriff on alert whenever I came to town for depositions.

. . . because that’s what happens in a true “harassment” situation: the party that perceives itself as more powerful will use insult, innuendo, and even internal politicking to make others feel “lesser,” like trespassers on the old white guy establishment in their quest for INCLUSION and RESPECT. The insults and innuendo are designed to convey one simple message: you do not belong here and I’m going to make your life suck for trying.

In the end, I trounced this asshole about as completely as a defense litigator can by getting 90% of the case dismissed on summary judgment before trial and winning at the “chicken game” of trial practice. Because we were loaded with evidence to overcome the one remaining claim reserved for a jury trial, the plaintiff’s lawyer fully capitulated and settled the case for nuisance value on the courthouse steps after nearly three years of litigation and six figures in attorneys’ fees . . . to me. (Don’t worry, those attorneys’ fees were paid by an insurance company, not the volunteers or non-profit).  As many women know, WINNING is the best (and often only) revenge.


“Harassment” is a complicated issue, driven by a constellation of factors that have little to do with LAW.  To address workplace “harassment,” therefore, we must turn to other disciplines for wisdom, especially the worlds of cognitive and social psychology.  These disciplines can help us better understand the “microcosm of the workplace” and how we interact with it and each other.  Instead, our workplace policy on harassment focuses on the reptilian mindset cultivated by trial lawyers: namely, that we must identify, weed out, and punish the HARASSERS and EVIL CORPORATIONS through large settlement payouts . . . of which trial lawyers take 33% to 45%.  Accordingly, it comes as no surprise that our efforts to eradicate “harassment” from our workplaces have failed so miserably.

Until we give our managers a truly balanced and realistic view of the “harassment” landscape, organizations will continue to be blind-sided by harassment allegations. In reality, most “harassment” allegations arise in the context of (1) pre-termination performance rehabilitation efforts; and (2) terminations.  Because managers do not recognize their conduct as “harassing,” they are unlikely to seek HR’s guidance in those common scenarios in which allegations arise. For that reason,‘s approach to managerial anti-harassment training also focuses on RISK, basic leadership psychology, and evidence development to help organizations manage the increasing risk of harassment allegations.

We hope you will join us.

Merrily Archer, Esq., M.S.W.

August 2, 2016

EEOC on Harassment: Irresponsibly Wrong!

shutterstock_423915988On June 20, 2016, the EEOC “Select Task Force on Harassment” released its lengthy Task Force Report and staged an impromptu “hearing” to discuss their “findings.”  And predictably, media outlets and Biglaw legal alert teams scurried to blast these EEOC revelations with headlines like:

Sexual Harassment Training ‘not as effective’ in Stopping Behavior at Work


Harassment Is Still a Massive Problem in the American Workplace

Unfortunately, none of these media outlets or Biglaw legal alert teams bothered to delve beneath the surface of the EEOC’s representations. Upon closer examination, three fundamental flaws become quickly apparent: (1) Confusing Allegations for Actuality; (2) Discounting the Fact that All Harassment Allegations Lie in the Eyes of the ACCUSER; and (3) Effectively Encouraging Employers to Jettison Training as “Ineffective,” advice that is illogical, irresponsible, and simply ignorant.

Confusing Allegations for Actuality

In Part II.B of the Report, the EEOC opens with the assumption that “harassment remains a persistent problem,” based solely on the number of harassment charges it receives annually. True, harassment charges comprised more than 1/3 of the EEOC’s FY2015’s charging intake. But the number of charges only measures how often harassment is ALLEGED, not how often it actually OCCURS.  According to EEOC statistics, only 3.6% of EEOC charges alleging harassment merited a determination of reasonable cause to believe that legally actionable harassment occurred; likewise, in over 62% of these charges, the EEOC issued “no reasonable cause” determinations, a trend that has remained relatively stable since 1997. Thus, even based on the EEOC’s own data, “harassment” occurs far less often than ALLEGED.

The EEOC, however, frequently confuses allegations for actuality and makes sweeping generalizations based on the composition of its charge intake. This reasoning is illogical and dangerous, especially for the EEOC: according to data begrudgingly posted pursuant to the No Fear Act, internal complaints of discrimination within the EEOC have doubled (and race charges have tripled) since Chair Jenny Yang assumed the helm.  Should we assume, therefore, that Chair Yang has reduced the EEOC to a hotbed of discrimination, based on these alarming charge trends? Needless to say, in this context, the EEOC would agree that the number of charges means only that ALLEGATIONS of discrimination were raised. And of course, seasoned practitioners on both sides of the employment litigation bar know that trial lawyers routinely include harassment claims in their EEOC charges to preserve and expand the scope of discovery after National Railroad Passenger Co. v. MorganIndeed, harassment allegations form part of a common trifecta of claims—e.g., discrimination, harassment, and retaliation—that increasingly challenge employers’ TERMINATION decisions.

Discounting that “Harassment” Lies in the Eyes of the ACCUSER

The threshold element of any “harassment” claim is UNWELCOMENESS, which (1) EMPOWERS employees to leverage claims simply by taking offense; and (2) EXPOSES managers to the sensibilities and motivations of their subordinates.  No doubt, the manager-employee relationship can be inherently fraught with conflict: managers enforce standards, address under-performance, communicate corporate policy, etc.  And, as I’ve observed over 19 years in the litigation trenches, harassment allegations have become a favored weapon for under-performing employees to lash out at managers and buy time in the job (i.e., on the hope that employers will delay termination to avoid a retaliation claim).

“Harassment” can literally include A-N-Y-T-H-I-N-G.  In EEOC v. Picture People, the EEOC alleged that it was “harassment” for a retail employer to tell a profoundly disabled employee that even with her proposed accommodations, she could not effectively fulfill the job’s essential functions.  In another case I defended, an under-performer lodged a harassment complaint against her manager for using the phrase “knock the stuffin’ out of that Egg McMuffin.” And in another, an under-performing employee allegedly suffered “harassment” when her manager showed coworkers a cartoon insinuating (and certainly not depicting) that two cartoon caterpillars had just had sex. What constitutes “harassment” lies in the eyes of the Accuser, and although 99 employees may have laughed at a post-coitus caterpillar cartoon, it takes only ONE to derail a career.

To date, after 30 years of EEOC enforcement and 25 years of private litigation, the definition of “harassment” remains as elusive and expansive as ever before, as the EEOC seems to recognize: “anywhere from 25 percent to 80 percent of women have experienced it at some point in their careers, depending on how the term is defined.” (emphasis added).  Right . . .

Effectively Encouraging Employers to Jettison Training as “Ineffective”

The Task Force Report cautions readers not to read too much into its pithy segment on Workplace Training.  As the Report noted, few studies have analyzed what makes training effective from a behavioral change perspective, and thus, its brief treatment on training

implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training, Part III.C.

That reasonable admonition, however, did not stop EEOC Commissioner Victoria Lipnic from mouthing off about the general efficacy of training at the recent national conference for the Society of Human Resources Management (SHRM).  According to comments attributed to Lipnic, the biggest Task Force “finding” was that it FAILED to FIND “any evidence that the past 30 years of corporate training has had any effect on preventing workplace harassment.”  Indeed, “[t]hat was a jaw-dropping moment for us,” said Lipnic.  The next day, featured prominently on the daily email report of SHRM’s national conference was the headline:

“No Evidence That Training Prevents Harassment, Finds EEOC Task Force”

Recently, The Guardian quoted EEOC Commissioner Chai Feldblum as stating:

We were surprised at the research that showed that the type of anti-harassment training that has been done to date … is not as effective in actually changing behaviors.

These statements about training are illogical, irresponsible, and ignorant of the basic psychological and organizational barriers that keep the compliance message from reaching MANAGERS—i.e., the organizational level where all violations and disputes occur.


As a threshold issue, nowhere in the Task Force is there any “finding” about the general efficacy of training to prevent sexual harassment.  In fact, the Report states the exact opposite, namely, that the “data cannot be extrapolated to support general conclusions about the efficacy of training.” But as a matter of logic, one simply cannot PROVE that a particular intervention (i.e., training) PREVENTED an event that MAY or MAY NOT have occurred based on the ABSENCE of EVIDENCE. This breach of logic, formally called argumentum ex silentio, is particularly “jaw-dropping,” especially from ostensibly law-trained EEOC Commissioners.


SHRM is the largest organization of HR professionals in the United States, maybe even the world. Its membership routinely convenes at conferences and monthly luncheons to hear the latest about the mercurial world of employment law and to take best practices back to their workplaces.  As the SHRM headline makes clear, the “takeaway” for many HR executives was this: training is not effective to prevent harassment and so, why bear the hassle and expense of it? Again, having worked with employers for 16 years under the attorney-client privilege, Lipnic’s irresponsible statement about training (especially online training) will discourage employers from investing in training altogether.

Unfortunately for employers, over the past two decades, whether employers offer regular training to their HR staff, managers, and employees has become the LITMUS TEST for minimal compliance.  Indeed, the EEOC and the plaintiff’s bar treat failure to offer regular training as per se evidence of “reckless disregard for employees’ federally protected rights,” the standard for imposing PUNITIVE DAMAGES.   Further, as the Task Force Report points out, the U.S. Supreme Court gave a nod to training in its 1999 Faragher v. City of Boca Raton and Burlington Industries v. Ellerth decisions, mentioning regular workplace training as evidence of an employer’s reasonable preventive efforts—i.e., the pivotal element of employer’s Faragher/Ellerth affirmative defense.

Training matters. To suggest, therefore, that employers jettison their anti-harassment training programs as INEFFECTIVE irresponsibly (1) exposes employers to punitive damages; (2) eliminates employer access to their Faragher/Ellerth affirmative defenses, and (3) deprives employers and stakeholders of the benefits of training DONE RIGHT.  In fact, regular management training can further the goals of equal employment opportunity by providing educational entrees to manager positions for African-Americans, Latinos, and Women (who lag behind other economic minorities toward achieving Official/Manager jobs).


The Task Force Report alludes to the involvement of psychologists and social psychologists in their research and recommendations.  Nowhere in the Task Force’s report, however, will readers find any analysis of the common psychological barriers that can interfere with an anti-harassment and anti-discrimination message from getting through to managers.  On the contrary, despite announcing that “[i]n simplest terms, training must change,” HERE, Lipnic and the Task Force “experts” overlooked common problems with training that undermine its efficacy from a behavioral change perspective, and then neglect to make recommendations about how to improve it, likely because potential solutions lie outside their respective wheelhouses.

Yet, instead of “throwing the baby out with the bathwater” by jettisoning training altogether, HR practitioners, employment lawyers, and professional trainers should acquaint themselves with several basic concepts borrowed from clinical, social, and educational psychology that bear directly on training efficacy:

Cognitive Dissonance. Normally occurring “cognitive dissonance” prevents people from perceiving their OWN conduct as harassing or discriminatory.  Numerous social psychology studies show that we humans universally rate ourselves as fair-minded, open, and non-judgmental, even while agreeing with blatantly racist statements in unconscious bias tests.  “Other people harass and discriminate,” managers say to themselves. “I would never harass and/or discriminate because I’m a good person.”  Partially for that reason, managers cannot conceive of the possibility that their conduct could be perceived as harassing or discriminatory—i.e., a fundamental disconnect between their intent and its effect on the listener.  I’ve defended or investigated more sexual harassment cases than I can remember, and almost always, the “harasser” will say, “I was just joking around,” or “I just said she had great boobs and that’s a compliment!” I’ve even written a funny folk song about this phenomenon, “Yep, That’s Harassment Indeed!”

In any case, because of this phenomenon, managers dread sexual harassment training and assume it does not apply to them–i.e., because they would never “harass”, they could never be ACCUSED of harassment, whether it’s harassment or not.  And so, they check out, rationalizing that the training is not relevant to them.

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Effective training penetrates that cognitive dissonance, and explains how sexual harassment allegations commonly arise in the workplace and how managers can protect themselves.  Even though most allegations are unfounded, the stain on the manager’s career is often permanent-i.e., the YOU Case.  Managers need a Managerial Miranda Warning (i.e., “everything you say can and WILL be used against you in a court of law”) that shines a light on the RISK inherent in their interactions with subordinate employees: even though 99 employees laughed at the caterpillar cartoon, for example, it only took one to derail a promising management career.  THAT message resonates with managers, and motivates them to coordinate more closely with their HR partners on termination decisions and workplace conflict issues.

Further, effective training also helps managers understand the COMMON ASSUMPTIONS even “good people” make that can lead to discriminatory employment decisions. Indeed, we humans apply a variety of psychological heuristics (i.e., mental reasoning shortcuts) as we navigate our world and make decisions.  By normalizing then addressing problematic mental shortcuts about Ability, Customer Preference, Tenure and Commitment, etc., training can help managers recognize when their own mental processes are leading them toward discriminatory decisions. has developed a program, “Common Assumptions that Lead to Discriminatory Decisions” to address this phenomena and help managers understand their own “isms”.  If we’re going to combat discrimination or harassment, we must break through the cognitive dissonance that keeps 100% of humans from perceiving their own conduct as discriminatory or harassing.

shutterstock_83361721Inadequate Program Design and Delivery.  According to EEOC Commissioners Feldblum and Lipnic, they seek to effectuate “behavioral change” in the workplace. But what do LAWYERS like Feldblum and Lipnic really know about THAT? Indeed, few law schools require coursework in Organizational Dynamics, Social Psychology, Cognitive Psychology, Group Dynamic Theory, Andragogy (i.e., adult learning science), etc.  On the contrary, the truly HELPFUL insights about workplace behavioral change reside far outside most lawyers’ wheelhouses, a fact that illustrates the FUNDAMENTAL PROBLEM with historic approaches to training: most programs are designed and delivered by LAWYERS.

workplacesnotworkingFew of these legal trainers, however, understand the SCIENCE of how adults take in and incorporate new information (i.e., andragogy).  Adults are skeptical and practical learners who evaluate new information for consonance (i.e., sounds right!), dissonance (i.e., WTF?), and relevance (i.e., what does that mean to me?).  Well-designed and delivered programs take into account adult learning psychology and present information in a manner that REACHES participants.  By contrast, most attorneys throw word-crap on a PowerPoint slide, talk about lawsuits, and then wonder why no one was engaged and why the training was “ineffective.”

Inaccessibility and Cost.  Finally, Commissioner Lipnic took a major swipe at ONLINE training options, claiming that to be effective,

you need training that is live, in-person and customized to your workplace. You need someone who understands what your workplace is.

This statement struck a dissonant chord, considering that the Task Force Report’s segment on training focuses on the need for more research—i.e.,  the Report “implicate[s] only the effectiveness of the specific trainings that were evaluated. The data cannot be extrapolated to support general conclusions about the effectiveness of training,” Part III.C.

No doubt, live training is more engaging and effective from an adult learning perspective. EEOC Commissioners too easily forget, however, that MOST ORGANIZATIONS (including the EEOC) have centralized management and decentralized operations, which makes it impossibly difficult to offer consistent regular training to managers and employees in the field.  Web-based training enables organizations to (a) deliver training across their diffuse operations at a reasonable cost; and (b) catch the “stragglers” who regularly dodge live training programs—i.e., typically the folks who most NEED training.  Web-based training also enables organizations to offer regular courses about the full gamut of EEO law, not just harassment. When training is expensive and difficult to arrange, organizations will forego it altogether.

But even beyond its affordability and accessibility, web-training training works very well from an adult learning perspective, when DONE RIGHT.  Understanding that adults are skeptical learners, well-designed web-based training offers participants TOOLS (e.g., social scripts or event schemas, in psychology) to try out at work. Through their own post-training experimentation, participants discover that these new TOOLS work well, which reinforces their use, ensures internalization, and promotes mastery (i.e., learning). Learn more HERE. Thus, contrary to Commissioner Lipnic’s untutored and unsupported opinions on what makes training “effective,” web-based training surmounts all the obstacles that prevent organizations from offering any training at all.

Illogical.  Irresponsible.  Ignorant.

Stakeholders and employers deserve better from the EEOC.

Merrily S. Archer, Esq., M.S.W.

June 30, 2016