Alexis McKenna, Winer McKenna & Burrett

The #MeToo movement has taken on serious momentum, and seems to hit a new industry every day. Human Resources personnel and corporate counsel across many industries are scrambling to assess their policies against sexual harassment and to make sure their employees are trained on these policies. However, most companies, both large and small, already have perfectly fine policies. Policies at large companies are often written by lawyers; for smaller companies, sufficient policies are easily found on-line or in human resources manuals. Further, many companies already have sexual harassment training. In fact, in California, employers with 50 or more employees are required by law to provide training to supervisors every two years.

But the crux of the problem is not lack of sufficient policies, or the lack of training. The problem is that most companies send a message that they do not take their own policies very seriously. Companies simply want to be able to check the box, stating they had a policy and they trained their employees on it, primarily because this could shield them from liability under federal law and could shield them from certain damages under California state law.

If companies genuinely wish to prevent sexual harassment in the workplace, which would then truly shield them from lawsuits, they must change their culture around sexual harassment. This starts with sincerely encouraging victims to report sexual harassment—and that does not mean putting words in a policy stating that victims are encouraged to report. Victims who report must be treated with respect and dignity, and not made to feel like they are the person who has done something wrong. Employees talk to each other and rumor mills abound—if one employee who reported a claim of harassment had a bad experience with the process, other employees will know about it and be discouraged from reporting themselves.

In June 2016, the EEOC Select Task Force on the Study of Harassment in the Workplace issued a report which included suggestions, based on their extensive research, for preventing harassment in the workplace. They found that leadership and accountability, which exemplify and determine a company’s culture, are crucial to harassment prevention. Leadership must be committed to diversity and inclusion, not just compliance with the strictures of the law. And, a system must be in place to hold harassers accountable in a meaningful and consistent way, regardless of their position in the company. A mere slap on the wrist conveys a message that harassment will be tolerated. Also, those responsible for enforcing the policies must also be held accountable—they should be rewarded for enforcement and disciplined for failing to do so.

Training, as it is currently often presented, is also insufficient. Essentially, what employees receive as training is what the law is regarding sexual harassment. While it might be important for employees to understand that sexual harassment is against the law, that is only one minor step in making training useful. As an attorney who litigates sexual harassment claims, I often ask defendants who have been accused of sexual harassment what they recall learning in their training. I never receive a response such as “treat my co-workers with respect” or “harassment can cause a person harm.” What I typically receive as a response is something that states what they should do to avoid liability. Most recently I asked that question in a deposition and the response I received was, “I learned it has to be pervasive to be harassment.” This person was left with thinking he can get away with harassment, as long as he doesn’t do it too often. This is not productive training.

Training should be live, and interactive, and taken seriously. Clicking boxes in a screen does not engage a person. It must be given to all employees, at all levels, although management should be present at every training to demonstrate the serious of the issue. Steps should be taken to make sure that the employees understand what they are being taught, such as a question and answer session. Training should not be cookie-cutter, but industry specific. It must be provided to employees in their first language, if they are not fluent English speakers. Moreover, corporate culture is expressed in time and money, so training should be often, and not given short shrift. Finally, it should go beyond the mere letter of the law, and what they should not do, but also encourage positive behavior, such as treating your co-workers with dignity and respect.

From my experience handling sexual harassment cases, many victims chose to sue because their company did not handle the situation properly. Until recently, many companies could be bothered to engage in true prevention. Then, corporate culture is often such that the victim is made to feel like she is the problem. Policies and procedures regarding sexual harassment are not enough to prevent harassment, nor prevent lawsuits. These policies must be ingrained in the company, be part of its culture, and make potential harassers know that inappropriate behavior in the workplace is no longer acceptable.

Alexis S. McKenna, a partner at the Oakland-based plaintiffs’ firm Winer McKenna & Burritt, is dedicated to social justice and protecting the rights of individuals. She represents workers and consumers against corporations and insurance companies in the fields of personal injury and employment law including sexual harassment and discrimination.