Why can’t we stop sexual harassment at work?

A generation of compliance training hasn’t fixed the American workplace. Nine women tell their stories.

By Claire Suddath, November 28, 2016, Bloomberg Businessweek

If you run a company in California, you have to take state-mandated anti-harassment training every two years. This October, Matt MacInnis, founder of a digital distribution business called Inkling, clicked through two hours’ worth of slides about inappropriate touching and sexual comments in an online course produced by an HR services company. As he answered multiple-choice questions to prove he’d paid attention, a thought occurred to him: This is a farce. MacInnis couldn’t see how an online training course would keep “an a–hole from still being an a–hole,” as he puts it. “There is a laudable goal, but the way we address sexual harassment now, the whole system is flawed,” he says. “I mean, is there anti-murder training?”

The Equal Employment Opportunity Commission (EEOC), which by law must investigate all federal harassment claims before they can proceed in court, received 13,000 sexual-harassment complaints last year (16 percent of them from men), outpacing the number it received for racial, ethnic, or religious discrimination. “We by no means think that’s the extent of the harassment,” says Peggy Mastroianni, the organization’s legal counsel. She estimates that as many as 90 percent of people who experience sexually inappropriate behavior at work never take formal action. Many who do are contractually obligated to litigate through private arbitration, which the EEOC can’t track. But decades of surveys show that harassment remains prevalent: In a 1981 Harvard Business Review survey, 60 percent of women said they’d been “eyed up and down” by male co-workers; last year the EEOC reported that somewhere from 50 percent to 75 percent of women have experienced sexual comments or touches that made them feel uneasy at work.

For more than three decades, U.S. companies and institutions have addressed such behavior through corporate policies and awareness programs, although there’s little evidence they’re effective. Compliance training makes up a sizable portion of what market-research company IBISWorld estimates is a $4 billion HR software market. In California, which has the most robust training requirements of any state, companies spend hundreds of millions of dollars on courses every year. About 80 percent of companies offer some form of training, although only three states—Connecticut and Maine, in addition to California—require them to do so. (Thirteen more states order training for at least some government employees.) They use all sorts of courses, produced by dozens of companies, from the cut-and-dried to risible theatrical re-creations.

Skillsoft makes compliance videos covering everything from data privacy to environmental sustainability for about 7,000 companies; it leans heavily on hired actors who demonstrate legal definitions in generic corporate scenes. HR Learning Center advertises one of its courses with a picture of a man and a woman making out on top of a filing cabinet. Inspired eLearning, which MacInnis used at Inkling, starts one of its videos with the words “charges of sexual and other forms of harassment can land your company in court,” followed by a picture of a frightened gray-haired man on what appears to be a witness stand. Emtrain, which creates online courses and runs in-person events for companies such as Chevron, Netflix, and Nordstrom, urges employees to mentally color-code their comments—green is respectful, red is offensive—and to call out their co-workers with gentle warnings such as “that’s a little orange.”

Early versions of these programs first cropped up in the 1980s, but their use didn’t pick up until two U.S. Supreme Court decisions in 1998 clarified when companies can be held liable for harassment. In the cases, which considered what’s known as “hostile work environment” harassment (frequent sexualized comments or touches), as opposed to the “quid pro quo” variety (the classic “sleep with me or you’re fired”), the court decided that a company will be held liable when a boss harasses a subordinate unless it can prove that it takes steps to prevent and address such behavior.

Catchall policies that disavowed harassment quickly became the norm. Pick any major institution today, and you’ll find one: “We do not tolerate harassment or inappropriate conduct,” JPMorgan Chase’s official code of conduct reads. Apple is committed to “a workplace free of harassment.” In addition to the standard prohibitory language, Google urges its employees to “be excellent to each other.” Goldman Sachs says it does “not tolerate any form of discrimination prohibited by law.” Despite the recent outpouring of harassment complaints regarding former Fox News Chairman Roger Ailes, the policy at the network’s parent company, 21st Century Fox, says that “unwelcome sexual advances [or] … verbal or physical conduct of a sexual nature” aren’t allowed, and people should feel free to report any harassment they see or experience.

These policies often go hand in hand with the training courses, which typically cover the legal definition of harassment and what kind of behavior can get people into trouble. Maine and Connecticut passed their laws requiring training in 1992, in direct response to the Supreme Court confirmation hearings for Clarence Thomas. California followed suit in 2004 after 16 women accused then-Governor Arnold Schwarzenegger of harassment. (“With your background, you probably ought to sign it,” Sarah Reyes, the state assemblywoman who introduced the bill, said about Schwarzenegger at the time.) But according to employment attorneys, HR managers, and the companies that design the courses, their goal isn’t to stop harassment—it’s to guard against lawsuits.

“You’re building a defense in the event of an incident, passing liability from the organization to the individual,” says Eugene Van Biert, vice president for global compliance solutions at Skillsoft. His company offers different levels of training; he says most of its clients pick the basic online course that employees click through to learn the legal do’s and don’ts. “They want to generate a record so they can say they’ve done it, then they want to move on,” he says. Skillsoft’s most comprehensive program includes a way for people to report harassment they’ve experienced in the past, but Van Biert says fewer than 20 percent of his clients choose the service.

Despite its popularity, there’s little research on this kind of training. Last year the EEOC established a task force to investigate workplace harassment and concluded that “much of the training done over the last 30 years has not worked as a prevention tool.” The commission could find only three studies, the most recent of which is 15 years old, that evaluated training programs over time at companies. “These training companies are making buttloads of money off these courses, but what little information we have on them raises serious questions about their efficacy,” says Vicki Magley, an organizational psychology professor at the University of Connecticut who co-authored two of the studies. There’s other academic research, Magley says, but it usually deals with fictional programs designed by researchers rather than actual courses that companies might use. In her experience, compliance courses help employees understand the definition of sexual harassment, but don’t change people’s behavior. “I have absolutely no faith that any kind of an online course is going to do anything to stop harassment,” she says.

The companies that design the courses—and the HR departments that implement them—also have trouble measuring their impact. “I kind of don’t have any answers,” says Phyllis Hartman, an HR consultant who’s been working on anti-harassment training for 25 years. “You just sort of do it and hope it’ll be better.” Emtrain’s chief executive officer, Janine Yancey, says her company plans to publish a report demonstrating how its services decrease harassment complaints, but it hasn’t released any results yet. As a researcher, Magley once teamed up with a company to evaluate its anti-harassment training but had to discontinue her study after the company got nervous about legal liability should she find it didn’t work. “The attorneys from this company came in and said, ‘We are not finding out that information.’ They pulled out of the study because they didn’t want to know,” she says. “If we could ask companies, ‘Have you had fewer HR complaints after taking our training?’ ” says Felix Odigie, Inspired eLearning’s CEO, “and gather that kind of intel, it would be gold. But I don’t know what company would provide that information. I asked the head of my own HR department if they’d be comfortable with that, and she looked at me like I had two heads.”

Focusing on the legal limits of harassment can make these courses culturally tone-deaf. Last year an internal investigation by the University of California at Berkeley found that a renowned astronomy professor, Geoff Marcy, had for more than a decade repeatedly groped female students who worked in his lab. (Marcy referred Bloomberg Businessweek to his lawyer, who did not respond.) And yet the school’s online anti-harassment training course included a hypothetical scenario that was almost the opposite of what the university was dealing with. The course described a fictional female student who “is attracted to her dissertation advisor, Dr. Randy Risktaker, and for months has repeatedly asked him out on dates.” Instead of discouraging a relationship, Berkeley’s training course noted that legally, Randy Risktaker could date the student as long as he first stopped being her adviser. “I have to tell you, that is not a problem most of us encounter as professors,” says Michael Eisen, a biology professor at Berkeley who took the course.

Sindy Warren, an employment attorney whose firm, Warren & Associates, investigates workplace harassment, says the best courses go beyond the law. “If you draw lines around behavior that’s just illegal, you’re missing the broader point. Lots of things are not illegal, but they’re not respectful or appropriate,” she says. But she’s quick to point out that compliance training is better than no training at all. The EEOC’s task force doesn’t want to do away with it either; it recommends that companies supplement training with initiatives that emphasize broader topics such as civility and respect.

MacInnis says he tries to do that at Inkling. Because his company has only 150 employees, he often meets one-on-one with people and asks about their concerns. Not long ago, for instance, he had lunch with a recent college graduate, and they wound up talking about the gender wage gap most of the time because it was on her mind. “The idea is that more nuanced engagement will create the kind of environment where, if it’s necessary, people can bring it up,” he says.

Even so, in the seven years since he founded his company, MacInnis has dealt with a few internal harassment cases. “I have friends who are CEOs who’ve dealt with way more gnarly stuff than I have,” he says. “I’d like to say I’m lucky, but usually there’s some sort of observable behavior that you can see before it rises to the level of something really serious.”

Why do so many women wait to come forward?

In October, Donald Trump’s senior campaign adviser, A.J. Delgado, told MSNBC that the women accusing the now president-elect of past assault and harassment couldn’t possibly be telling the truth because “these allegations are decades old. If somebody actually did that … any reasonable woman would have come forward and said something.” The same why-didn’t-you-say-something-earlier question has been asked during almost every headline-making sexual-harassment scandal. Earlier this year it was lobbed at former Fox News anchor Gretchen Carlson when she complained about her then-boss, Roger Ailes. Paula Jones got it in 1994 about Bill Clinton.

Veiled character attacks aside, many women do, quite reasonably, assume they would come forward immediately if they were in that situation, says Louise Fitzgerald, professor emerita of psychology at the University of Illinois at Urbana-Champaign, who specializes in the psychological effects of harassment. “But that’s not what happens,” she says.

In a landmark study published in 2001 in the Journal of Social Issues, psychologists Julie Woodzicka and Marianne LaFrance interviewed 197 women about what they would do if they were confronted with inappropriate or aggressive sexual provocation in a professional setting. The women said they would get angry and refuse to put up with it. But when Woodzicka and LaFrance subjected 50 of the women to inappropriate comments in what they believed were real job interviews—the interviewer asked if they wore bras to work, if they felt they were sexually desirable—every woman, without exception, sat through the interview and answered the questions. None reported the interviewer’s behavior. Later, they said they hadn’t been angry. What they’d felt was fear.

“We really didn’t think the difference between their assumptions and their behavior would be so stark,” says LaFrance, a professor at Yale. “My first response as a scientist was, ‘Wow, this data is so great!’ My second thought was, ‘Oh God, this is awful for women.’ ”

When the women were being harassed, their most common reaction was to smile. “It was this fake placeholder smile that they plastered on their face,” says Woodzicka, a professor at Washington and Lee University, “and then just left there for the duration of the job interview.”

“It’s like they were literally grinning and bearing it,” LaFrance says. In a follow-up study published in 2004, the psychologists showed footage of the women’s interviews to men and women and found that men were more likely to misread the smiles as genuine.

Woodzicka and LaFrance studied only in-the-moment reactions, however. After the incidents, Fitzgerald explains, rational considerations about whether and how to respond come into play. A woman who’s been harassed might consider who did it and how important that person is to the company. Will she be believed? Can she afford to lose her job or burn a professional bridge?

Quitting is often not an option for people living paycheck to paycheck. But Fitzgerald says highly paid women with prestigious careers also put up with harassment, because “the higher you go up the employment ladder, the more difficult it is to find a job to replace the one you’re leaving.”

During Anita Hill’s testimony before the U.S. Senate Judiciary Committee about the sexualized atmosphere she experienced while working for Clarence Thomas in the 1980s, she was criticized for having kept in touch with him and for following him across two jobs (one, ironically, at the Equal Employment Opportunity Commission). “You might need to call on this person for references,” says Hill, now a professor of social policy, law, and women’s studies at Brandeis University. “Unless you’re willing to explain to future employers why you’re not speaking to this person, there is an understanding that if this is someone you worked for, someone who holds a key to your future in his hands, you’re going to have to maintain some kind of relationship.

“I like to believe that now we understand these kinds of situations better,” she adds. “But people should remember that even if it takes them years, or they don’t come forward at all, that doesn’t mean it didn’t happen.”