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So what’s not to like about sex harassment training? How else could employees get to spend a couple of hours talking about dirty jokes, smutty screen savers and how to distinguish permissible from impermissible hugs at work? How else could employers get to claim, if sued for harassment, that they did their best to prevent it? And how else could lawyers and human resources consultants get to make such tidy sums, generally between $1,500 to $3,000 a day, for talking about sex at work? When harassment training offers a little something for everyone, isn’t it churlish to complain? Not exactly. Recent experience with California’s new state law requiring harassment training for supervisors raises legitimate grounds for concern. Skepticism comes from even normally sympathetic commentators, myself included. As a law professor who focuses on gender bias, I am obviously a believer in education about the problem. But it’s possible to support training programs in principle while questioning their effectiveness in practice. And there is much not to like about current approaches. Harassment education in some form has been around for a quarter-century. Interest has increased in recent years due to several factors: well publicized multimillion-dollar verdicts in harassment cases, the continued high volume of complaints and U.S. Supreme Court decisions that reward training. In Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, the court recognized a defense for employers in liability suits if they exercised “reasonable care” to prevent and correct harassing behavior and if the complainants unreasonably failed to take advantage of the remedial channels available. In Kolstad v. American Dental Association, the court also provided a safe harbor from punitive damages for employers that adopted anti-discrimination policies and education programs. In addition, four states � California, Connecticut, Maine and Massachusetts � require harassment training for designated groups.
The first problem with such requirements, as well as the voluntary programs that many employers have initiated, is that there is no convincing evidence of their effectiveness. No systematic body of research has assessed the impact of training on long-term attitude or behavioral change, or on the frequency of harassment. What limited evidence is available suggests grounds for concern. For example, one study by psychologist James Witherspoon found that prior harassment training did not affect individuals’ overall evaluations of videotaped harassment scenarios. Another study, by Alexander Kalev, Frank Dobbin and Erin Kelly, of some 800 employers, found that diversity education programs did not improve managerial diversity. Susan Bisom-Rapp, the legal scholar who has made the most extensive study of the literature, concludes that “we don’t know much about the kind of training that works to purge an environment of harassment, and … training alone can’t do it. One needs to foster a culture of equality and take concrete steps to achieve it.” A further problem with education programs is the lack of quality control. The risk is that poorly designed programs may foster resentment and perpetuate the sexual bias that they are meant to address. This may be an unintended result of training that highlights trivial examples of harassment and underscores the risk of personal liability for managers. My training program did both, by offering examples of inadvertent misconduct, such as staring or invading employees’ “personal space,” and stressing that insensitive supervisors could lose not only their “reputation” but also their “home, car and life savings.” My husband’s training described compliments such as “you look nice in that dress,” or acts of chivalry like holding a door open, as falling into a “dangerous gray area.” To be sure, most programs offer useful summaries of the law and of employer policies. But many participants that I have interviewed and program evaluations that I have reviewed suggest that too much time is wasted on “mindless” exercises or “irrelevant,” “obvious” or “extreme” examples. Too many employees may end up feeling that the training is designed to placate humorless, oversensitive feminists who should get a life, not a law. Requiring two hours of sexual do’s and don’ts every two years may be unnecessary. “Be careful what you wish for” is a proverb on point. Before we rush to legislate mandatory training, we need more evaluation of what we now have, and we should be sure that what we require is in fact effective. We cannot afford to leave many participants agreeing with one of my colleagues: “This appears to be a course designed by idiots for idiots.” Deborah L. Rhode is the Ernest W. McFarland Professor of Law at Stanford Law School. This column first appeared in the National Law Journal, a Recorder affiliate.

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