Sexual Harassment Training: Legal Content in 2018

April 9, 2018 Mike Fischer, Partner at Quarles & Brady LLP

As a partner at Quarles & Brady LLP, and SAI Global subject matter expert for over a decade, Mike Fischer has worked with instructional designers and writers in developing scores of scenarios addressing the sexual harassment and misconduct issues which arise every day in worksites all over the world. 

Over the past twenty years, I've conducted hundreds of sexual harassment training sessions in offices around the country, so trust me when I tell you that nobody really thinks they need to sit through another round of sexual harassment training. The rolling eyes, tapping feet, broad smirks and off-center stares all say “I know what sexual harassment is.” But the #MeToo movement and headlines in the news say something else. It's something that those of us conducting such training have known all along. 

Sexual harassment hasn't gone away, and people have a harder time identifying what it is than they think. Defining and identifying harassment may not seem particularly complicated until you dive in and explore how it arises, both physically and emotionally. And what employees should do when it does. 

When is a hug no longer OK? Is it harassment when an employee gets offended after overhearing two guys bragging about their weekend exploits? Does it matter if the person overhearing this conversation is male or female? Does a company have any right or business stepping in when an employee sends suggestive texts or pictures from the privacy of his bedroom, in the middle of the night?  

When developing ethics and compliance training content around harassment and misconduct, hundreds of such scenarios are evaluated and considered. The right answers to these questions aren't always intuitive, vary between culture and industry, and are even more challenging in business environments that place a premium on privacy or don't encourage speaking up. As we sift through those scenarios, I not only provide a legal overview but also weigh in on the credibility of the scenarios themselves. 

It's not something I come to cold. I moonlight as the chief theater critic for Milwaukee's daily newspaper; I see hundreds of stage performances each year, and I've written thousands of reviews. I've long recognized what many lawyers forget: for the law to make sense to those who must follow it, the scenarios through which it's presented need to be credible and interesting as well as informative.

And yes: Those scenarios simultaneously must explain the law. My legal review of the scenarios in this content therefore necessarily entails ensuring that SAI Global's courses correctly define harassment and retaliation; what constitutes a hostile environment and how one reports harassment; the consequences of supervisor liability and protection against third-party harassment. 

Even before the SAI Global designers begin scripting various scenarios, we spend hours together on conference calls and with outlines, hammering out how we're going to explain sometimes complicated legal concepts to ensure they're readily understood. During the creation process, I'll review several drafts of every script, sharpening legal definitions and ensuring quiz questions cover the legal bases, all while helping refine the scenarios themselves.    

SAI Global's latest ethics and compliance training and content, being released in April 2018, reflects all the lessons we've learned over the years and feedback we've received from the Fortune 1000 companies that trust us to help them address this subject. 

These training modules make clear that when an employee is being harassed, it's everyone's business. An injury to one truly is an injury to all, and a culture in which some people can be treated disrespectfully winds up making everyone less safe. SAI Global has long included a component within its sexual harassment training courses involving bullying; picking on people because they're different encourages the sort of toxic environment in which employees are singled out because they're a particular gender or ethnicity. When an employer stops bullying, it's also taking preventive measures to stop harassment, and instead promoting a welcoming and safe environment in which employees learn from difference rather than ridiculing it.

From a legal perspective, a plaintiff must scale a high hurdle to establish legally cognizable harassment, which requires that conduct be demonstrably severe or pervasive, in a manner that a reasonable person in the victim's position would find offensive. That means the offhand sexist joke here, or the innuendo there, usually won't by themselves be enough to make the grade, despite being demeaning and wrong. But there are prudential and moral reasons why such conduct shouldn't - really, can't - be ignored. 

Viewed pragmatically, even an isolated comment, proposition, or touch can serve as evidence - bolstering a plaintiff's sexual harassment case, regardless of whether those one-off incidents are themselves sufficient to establish legal harassment. Viewed morally, such behavior is flat-out wrong, regardless of whether it officially rises to the level of legal harassment. Left unchecked, such behavior and incidents are also likely to multiply, spreading their toxic influence.

These learning experiences should regularly point out what constitutes legal harassment. But they also aim to do more, offering a value-add in which we simultaneously assist organizations in promoting a culture of respect predicated on the golden rule: do unto others as you'd have them do unto you. That's good business. It's also the right thing to do.


For more information about these new E&C training and communication tools and how your organization can use them, visit our website.

 

 

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