Harassment, Workplace Culture, and the Power and Limits of Law

70 Am. U. L. Rev. 419 (2020).

* Herbert and Doris Wechsler Clinical Professor of Law, Columbia Law School. Many thanks for helpful comments and conversation to Lisa Bernstein, Mary Anne Case, Liz Emens, Julie Goldscheid, Todd Henderson, Vicki Jackson, Olati Johnson, Lou Kelley, Suzanne Kim, Gillian Lester, Lance Liebman, Henry Monaghan, Chuck Sabel, Bob Scott, Susan Sturm, Kendall Thomas, and colleagues in faculty workshops at Columbia Law School, The Ohio State University Moritz College of Law, and the Law and Society Association Annual Meeting as well as students and faculty in the University of Chicago Workshop on Regulation of Family, Sex, and Gender. Thanks also to Natalie Cha, Brett Christensen, Arielle Feldshon, Idun Klakegg, Natasha Korgaonkar, Sneha Pandya and Anna Qiran Xie for excellent research assistance. Although I draw on my experience as a university executive vice president and as a reporter for an American Law Institute (ALI) project on procedural frameworks for campus sexual misconduct cases, this article expresses my views in my personal capacity only and does not comment or express views on behalf of Columbia University, ALI, or any other institution.

Abstract

This article asks why it remains so difficult for employers to prevent and respond effectively to harassment, especially sexual harassment, and identifies promising points for legal intervention. It is sobering to consider social-science evidence of the myriad barriers to reporting sexual harassment—from the individual-level and interpersonal to those rooted in society at large. Most of these are out of reach for an employer but workplace culture stands out as a significant arena where employers have influence on whether harassment and other discriminatory behaviors are likely to thrive. Yet employers typically make choices in this area with attention to legal accountability rather than cultural contribution. My central claim is that these judgment calls—about policy, procedures, training, and operations—shape workplace culture and that it is a mistake to view them only through a compliance lens. With this insight, it becomes clear that each of these will be more effective in shaping culture when the employee user-experience is a focal point, and this article suggests many ways to achieve this result.

By seeing harassment prevention and response as an opportunity for culture creation in addition to being a compliance obligation, it also becomes clear that harassing behavior may negatively affect the targeted employee and the broader workplace even when there is no risk of liability. This includes “low-grade harassment,” a category I use to describe behaviors that are intentionally harassing but not severe or pervasive enough to meet doctrinal thresholds. Also relevant are microaggressions and interactions that reflect implicit bias, as these are unlikely to expose a firm to liability because they lack the discriminatory intent required by legal doctrine but nonetheless can create significant challenges for employees and organizations. This is not to suggest that employers should respond in an identical way to all of these occurrences. Rather, the point is that inattention to experiences that go beyond legal-accountability requirements is likely to spill over into the broader workplace culture and diminish the effectiveness of other harassment prevention and response efforts.

The good news is that there are specific steps an employer can take to have harassment prevention and response become part of the workplace culture rather than being sidelined as compliance. Thoughtfully crafted legislative and policy interventions, along with litigation settlements, also can bridge this gap and create a more seamless set of cultural expectations for how employees interact with each other at work and what they can expect from their employer when challenges arise.

Introduction

In discussions prompted by the #MeToo movement, we have seen myriad stories of employer failures to respond in a meaningful way to sexual harassment allegations. Although there has not been a correspondingly prominent social movement regarding racial harassment at work, case law likewise reveals a similar phenomenon.¹

This Article considers the power and limits of law to affect workplace harassment and other abusive behavior² through the lens of workplace culture. I focus in particular on the way that employers’ choices about harassment policies, trainings, and systems for handling complaints shape that culture, often invisibly and unwittingly. I focus as well on the untapped potential of legal interventions to affect these choices and make a dent in abuses of workplace power.

The starting premise is that workplace culture at both the organizational and “local” levels plays a substantial role in shaping how employees experience the workplace,³ including their reactions to harassment and harassment-prevention efforts. Defined as the beliefs, understandings, values, and behaviors shared widely within an organization, workplace culture has multiple sources, both internal and external to the organization.⁴ While this culture is most often associated with a tone set by management, anyone who has worked in a large organization knows that the local culture also matters a great deal to an individual employee’s work experience, including the setting and the people with whom one works most directly.⁵ Because organizations vary in the degree of in-person contact among employees, I refer interchangeably to workplace culture and organizational culture to underscore that this shared set of beliefs and behaviors is not limited to the physical workspace.⁶

Law, as such, is often thought to be a minor player in day-to-day workplace interactions.⁷ While statutes, regulations, and case law can impose liability and create pressure on employers to revise policy, set up systems, and instruct managers, they do not apply directly to individual employees.⁸ Further, these sources of law provide general parameters by design rather than specific guidance for the complex situations presented by real life. Formal legal intervention to resolve conflicts is also rare within a workplace.⁹

As a result, employers must make a series of judgment calls regarding complaints and conflicts that interact with these sources of law, and each of these in turn influences the workplace culture. There are, for example, the organizational policy choices that set behavioral expectations in the workplace.¹⁰ Similarly important are the procedural and organizational-design decisions about how and where complaints will be handled.¹¹ There are also the operational decisions about staffing, training, and communicating these structures and policies to employees that are critical to the effective functioning of any workplace process. And there are the “as-applied” judgments to resolve discrete conflicts between employees.

These four types of judgment calls—policy, procedures, operations, and application—may not be top of mind as contributors to organizational culture but a central claim of this Article is that they should be. These choices affect far more than liability risk, and their influence on workplace culture is disregarded at an employer’s peril. An organization’s approach to its legal-compliance obligations regarding harassment and other discrimination expresses values and sets expectations that influence employees’ interactions with each other and with clients, customers, or other stakeholders. Put simply, legal-accountability culture is part of the broader workplace culture, and each culture has the potential to reinforce or undermine the other.

At its best, a thoughtful approach to the interaction between legal accountability and other aspects of workplace culture can make clear that harassment and other abuses of power are outlier behaviors within an organization. But choices related to legal accountability can also diminish or doom harassment prevention-and-response efforts.¹² Consequently, illuminating the culture-shaping implications of these choices can teach us a great deal, both theoretically and practically, about whether employer efforts and legislative innovations designed to reduce the incidence of harassment and other discrimination are likely to have their intended effect.¹³

None of these choices takes place in the abstract, so this Article proceeds by digging into the factors that make workplace harassment so seemingly intractable, starting with the dynamics that individuals bring into the workplace, then moving to organizational and external factors, and ultimately to the ways in which legislative interventions might prompt greater attention to legal-accountability cultures within organizations.

Part I offers an extensive map of individual, organizational, and societal factors that feed into an organization’s culture, drawing on the socio-ecological model used in public health to assess complex environments.

Part II looks in greater depth at how variations in an employer’s attention to workplace culture affect an employee’s “local” environment.

Part III then turns to employers’ legal-accountability decisions, examining the sources of law that make up the compliance landscape. This Part gives special attention to one of the more difficult choices employers face: how to handle behaviors that do not give rise to legal liability but may look and feel like harassment, especially to the targeted employee. These include what I call “low-grade harassment,” a category of behaviors that are clearly harassing but not “severe or pervasive” enough to meet doctrinal thresholds.¹⁴ The discussion also considers the effects of implicit biases and microaggressions, including indirect, subtle, or unintentional comments and behaviors that can have a significant negative effect on an employee’s ability to participate fully in the workplace.¹⁵

Part IV then considers several points at which legislative or doctrinal interventions might do more to shape organizational culture, looking first at the potential for influencing individual employees and the external environment. Primarily, though, this Part focuses on organization-level interventions related to policy, procedure, and training and considers whether any of these can produce a shift in the legal-accountability choices that shape the overarching culture. Part V concludes.

* * *

In essence, then, this Article aims to deepen our understanding of why it continues to be so difficult for employers to prevent and respond effectively to sexual harassment; to clarify law’s relevance to our thinking about workplace culture; and to identify points of intervention for legislatures, employers, and advocates that have potential to support constructive change. While I focus on sexual harassment, the analysis is intended to carry over to other forms of harassment and discrimination as well.

The discussion seeks to complement legal scholarship that takes other approaches to sexual harassment law, such as identifying and correcting doctrinal defects, conceptualizing sexual harassment in relation to other forms of discrimination, and critiquing non-disclosure agreements and other legal arrangements that have enabled harassment to continue without penalty.¹⁶ It also adds a legal lens to social scientific investigations of harassment, discrimination, and employers’ capacity to effect change in workplace dynamics.¹⁷

There are several caveats and contextual notes needed for the arguments that follow. First is a familiar but important point that sexual harassment involves the exercise of power and is best understood in the context of broader inequities related to sex and gender in the workplace and surrounding society.¹⁸ This has been recognized in doctrine, which does not require misconduct to be “motivated by sexual desire to support an inference of discrimination on the basis of sex.”¹⁹ The Equal Employment Opportunity Commission has likewise affirmed that harassment can include “unwelcome sexual advances, requests for sexual favors, and other verbal or physical harassment of a sexual nature” but “does not have to be of a sexual nature . . . and can include offensive remarks about a person’s sex.”²⁰ Scholars, too, have made this point in numerous disciplines, observing and analyzing the use of power to demean women and others who are perceived as weak, vulnerable, or otherwise not fitting within the environment for reasons related to sex, sexual orientation, gender identity, or gender expression.²¹

Second, the analysis here is not offered as a comprehensive solution to the problem of workplace harassment, much less as a complete response to the need for more fully inclusive workplaces.²² My hope, though, is for the discussion to make clear that employers’ obligations to address harassment and other discrimination are about more than protecting against liability.²³ Fundamentally, these obligations are, or can be, a site of culture-creation and a bridge to strengthening a more inclusive, less discriminatory workplace culture. For employers that do not already devote resources to these larger efforts, understanding their response to legal obligations as a tool for building culture may be a prompt to further action.²⁴ The same goes for organizations with great-looking but ineffective policies.

It also bears noting that workplace ecologies fluctuate in response to changes in organizational leadership.²⁵ Dynamics at the local level—we might call them microclimates—will also produce variation within organizations and mediate efforts to create change.²⁶ In other words, this is an area where one size definitely does not fit all, and the effectiveness of interventions may vary over time. My aim is thus not to identify what will work in every setting for every moment. It is, instead, to consolidate our understanding of the factors in play and how employer choices about legal accountability affect an organization’s culture and the ways people interact at work.

I. The Landscape: Individual Employees and Their Surroundings

The array of factors bearing on whether harassment is likely to occur and persist in a given workplace is vast. Yet we must contend with this vast array if we are to understand the conditions that affect whether harassment prevention and response efforts are likely to succeed and to identify entry points for law and barriers to the effectiveness of legal interventions.

The socio-ecological model, developed in public health as a method for evaluating complex influences on behavior, is especially useful for this effort. The model insists that we look at the interactions among multiple ecosystems: individuals, their relationships to each other, the community in which those relationships take place, and the institutional and societal factors that bear on the environment.²⁷ It helpfully resists reductionist thinking that one act or one type of intervention will make all of the difference.

This Part sets out an extensive inventory using a simplified version of the socio-ecological model’s typology, looking primarily at individuals but also briefly at organizational and societal influences. To be sure, no discussion could possibly capture every variation in individual and workplace dynamics and even among the elements included here, there are as many variations as there are people and environments.²⁸ For this reason, the Sections below collect archetypal issues, understanding that each may vary in appearance and significance depending on the environment.

A. The Individual

Harassment occurs between and among individuals and there are, not surprisingly, many factors at the level of the individual that bear on harassment prevention and response in any workplace.²⁹ The discussion here groups these as factors that affect 1) individuals’ decision to report harassment; 2) others’ willingness to step in, which is often called “bystander intervention”;³⁰ and 3) a potential perpetrator’s likelihood of engaging in harassing behaviors in a particular setting or toward a particular coworker.

1. To report or not to report

As coverage of #MeToo and earlier literature on sexual harassment make clear, individuals who are subjected to harassment—even egregious harassment over a long period of time—often share little about their experience with others, and when they do, it is more often with a friend or family member than a colleague or supervisor.³¹ Although this is changing somewhat as the #MeToo movement and social media have provided support and new mechanisms for people to tell their stories, disclosing harassment in the workplace remains difficult for many.³²

Consequently, to be effective, any efforts to encourage employees to report incidents, particularly to a supervisor or human resources manager, will need to take account of factors that inhibit or support employees in disclosing harassment. As will be apparent from the discussion below, these factors are often mutually reinforcing, underscoring the complexity of the landscape that harassment law and policy aim to affect.

The first is perhaps the most deeply personal: shame and embarrassment. Many individuals who have experienced harassment indicate in studies and surveys that they felt ashamed or embarrassed about what happened.³³ Some say they felt they brought the experience on themselves (i.e. that they were “asking for it” in some way) because of a friendship they cultivated with the colleague or because they drank too much at an office gathering, did not speak up about what was happening or did not repeatedly reject a colleague’s sexualized touching.³⁴

Closely related to shame and embarrassment is a fear of being negatively judged by others, whether peers, supervisors, or human resources staff.³⁵ For many, this reflects a realistic reputational concern about being perceived as disruptive or, in certain settings, as unprofessional.³⁶ Indeed, social retaliation, including negative gossip and ostracism by coworkers, which “can come from individuals at any level of the organization—peers, superiors, and subordinates[—] . . . occurs at roughly twice the rate of professional retaliation, and it carries equivalent professional and psychological harms.”³⁷

Conversely, employees who expect that their peers will be supportive may be more likely to report³⁸—a data-point that has clear policy relevance. As one recent study observed, “[m]any people have a strong reliance on their friends and members of their social organizations when they find themselves in an uncomfortable situation such as hostile environment sexual harassment.”³⁹ This insight might be operationalized by, for example, allowing employees to register for trainings with peer groups or friends so that each knows the others might remember something about the employer’s policies and how and where to find help.⁴⁰ I will return to this in Part IV.

Retaliation by the perpetrator is also well-established as a reason for non-disclosure.⁴¹ This may take the form of direct threats to personal safety, the safety of others, or workplace opportunities, including, at the extreme, termination and interference with employment elsewhere.⁴²

It also bears noting, as an individual-level factor, that some employees do not label what is happening to them or to others as harassment, even when an outside observer might see the conduct as severe or pervasive.⁴³ Race, sex, age, national origin, and other aspects of identity and personal backgrounds, along with individuals’ perceptions of what is to be expected in particular workplaces, all have been identified as potential influences.⁴⁴

Perceptions of law and policy may matter as well. Employees may know that it is hard to “win” a lawsuit⁴⁵ or to prevail with human resources, even if they do not know the doctrinal details. And this belief may feed into their understanding of what counts as harassing behavior.⁴⁶

Even without taking law into consideration, many employees do not report incidents because they believe that meaningful redress by their employer is unlikely.⁴⁷ Sometimes they may have seen or heard others’ concerns dismissed as trivial (e.g. “He’s just that way with everyone” or “Don’t be so sensitive”) or illegitimate (“He wouldn’t do that” or “You must have misunderstood”).⁴⁸ This is especially—though not only—an issue when the alleged harasser is more senior or otherwise more powerful within the environment.⁴⁹ Doubts about the effectiveness or judgment of staff responsible for addressing concerns can also inhibit reporting, as can skepticism about their ability to protect the employee against retaliation.⁵⁰ And if the alleged harasser is a client or a vendor, or the incident took place at a conference or other offsite venue, the employee may sense, perhaps correctly, that little can or will be done to address the problem.⁵¹ Personnel privacy policies and non-disclosure agreements that conceal what actually happens to those who violate workplace policy may also reinforce employees’ beliefs that complaints are unlikely to prompt action.⁵²

2. See something, say something?

Some of the same factors that influence an employee’s decision whether to report an experience of harassment—a sense of self-efficacy⁵³ and a view about what constitutes harassment—also affect whether coworkers help when they learn about concerning behavior, either by addressing the situation themselves or reporting an incident to someone who can take action.⁵⁴ Reputational concerns are similarly influential—in the bystander context, the question is whether an individual who steps into a situation is seen by others as helpful or meddling.⁵⁵ Knowledge about where to go for help and how the employer is likely to respond may also influence whether coworkers report incidents and concerns.⁵⁶

Workplace policies and culture have a particular role to play here. Even individuals who are not temperamentally inclined to address a colleague’s behavior may overcome their reluctance if they are required or expected to act because of their role as a supervisor or manager.⁵⁷ For this reason, accountability measures that require managers to report concerns—and impose consequences if they do not—are central to the Equal Employment Opportunity Commission’s recommendations for reducing workplace harassment.⁵⁸

Skills training on how to step in and help a colleague may also enhance an individual’s capacity and willingness to act, particularly if the employer regularly reinforces “stepping in” as a workplace norm.⁵⁹ This is another area where legal accountability requirements can provide an assist, as Part III will address.

3. Why do people sexually harass others at work?

Understanding why someone might sexually harass a coworker or supervisee is a third individual-level factor worthy of consideration in developing interventions to support harassment prevention and response.

The characteristics of individuals who are likely to engage in sexual harassment at work have not been studied deeply, though there are insights to be gleaned from the research that does exist. One literature review has noted studies suggesting, for example, “that harassers lack social conscience, are naïve about heterosexual relationships, and engage in immature, irresponsible, manipulative and exploitative [behaviors].”⁶⁰ Other studies have shown that “[h]arassers are also thought to over-infer women’s criticism and rejection, supporting the view that [harassment] is related to aggression rather than seduction.”⁶¹ Looking to social identity theory, scholars have also observed that men who strongly identify with other men in traditionally male-dominated workplaces may carry over an “us versus them” perception into hostile or harassing behaviors.⁶² A growing literature on counterproductive workplace behavior of all types similarly finds a connection between individuals’ internal capacity to regulate their emotions and situational factors in the work environment.⁶³ As one study put the point, “some people may be predisposed to sexually harass and some social situations may be conducive to sexual harassment.”⁶⁴

A more extensive literature on sexual assault identifies additional factors that may affect whether an individual will attempt to coerce a sexual interaction. One major study, commissioned by the U.S. Air Force and produced by the RAND Corporation, examined these oft-studied factors: “experience of child abuse, previous sexual behavior, interpersonal-skill deficits, gender-related attitudes, perceptions of peer behavior, and substance abuse.”⁶⁵ Considering these together, the RAND report concluded that “sexual assault perpetration is a complex behavior that is likely influenced by a combination of factors, including an individual’s developmental and family history, personality, and environmental and societal influences.”⁶⁶

As is surely apparent, workplace culture, law, and policy are unlikely to be influential unless they can affect a potential perpetrator’s sense of how others would regard the behavior.⁶⁷ Some research has found individuals with a predisposition toward engaging in harassing behavior were more likely to do so when “exposed to an authority figure who displayed such behavior himself.”⁶⁸ In the context of sexual assault, the RAND report concluded, too, that “individuals who perceive their peers as approving of sexual assault are more likely to commit sexual assault.”⁶⁹

Similarly, individuals’ perceptions of their own power and the power of others within an organization may affect whether they engage in unwanted sexual conduct and comments.⁷⁰ In the workplace, this power may be understood in a variety of ways, including an individual’s formal authority or perceived authority to control the status and opportunities of another person, as well as individual’s physical or social power within a group.⁷¹ These perceptions of power are informed and influenced, in turn, by organizational and societal-level factors that I will turn to below and in Parts II and III.

B. Organizational Structure

Individuals work within an organizational structure, and the choices an employer makes about structuring the work environment can themselves influence the effectiveness of efforts to reduce harassment.⁷² Small hierarchical departments with little outside oversight, for example, can render employees more vulnerable to abusive behavior and less able to access protection if the manager disregards complaints or perpetrates the abuse.⁷³ Structures that make an employee’s advancement dependent on a relationship with one individual exacerbate the risks associated with reporting abuse by that person. Physically isolated work areas also can enhance risk because there is less likely to be a coworker present to witness harassing behavior, much less intervene to stop it.⁷⁴

In addition to formal structure, special risks also have been identified in settings where individual employees depend on their employment for immigration status or basic subsistence and, as a result, are less likely to seek help.⁷⁵ Environments where alcohol or drug use is pervasive, either in the workplace (as is true for some restaurants and nightclubs) or during off-site parties, tend also to present greater risks that must be accounted for if employer efforts and legal interventions are to be effective in reducing the incidence of harassment.⁷⁶

C. The External Environment

In addition to the individuals and organizational structures that define a workplace, external influences—both societal and governmental—can substantially affect whether harassment prevention and response efforts gain traction inside a workplace.⁷⁷ As with individual-level factors, an employer has control over how it responds to external influences but, ordinarily, not over the influences themselves. Still, just as employers must consider the market in which they operate if they are to succeed, so too must they take account of the conditions outside the workplace that affect their employees.

Shifts in popular culture, large-scale social commitments, and the legal/regulatory environment all have the potential to affect employee expectations of their work environments and, by extension, the obstacles or openings for prevention and response efforts.⁷⁸ Interactions and comments that were considered by many as acceptable or funny in popular entertainment, for example, come across today as jarringly out of step.⁷⁹ These kinds of changes in popular culture both reflect and inform what happens in real workplaces.⁸⁰ In similar ways, societal expectations about interpersonal behavior also may affect whether complaints or concerns will be taken seriously by employers.⁸¹

Cultural inflection points also seep into, or sometimes abruptly unsettle, dominant patterns of behavior. In the 1960s and 70s, for example, the civil rights and women’s movements reached into the workplace and delegitimized, or at least called into question, some longstanding forms of differential treatment based on race and sex.⁸² More recently, the #MeToo movement’s transformative effect on discourse about sexual harassment has prompted sustained national conversation and debate,⁸³ as has the Black Lives Matter movement with respect to anti-Black racism.⁸⁴ As Catharine MacKinnon observed regarding #MeToo, “[t]his mass mobilization against sexual abuse, through an unprecedented wave of speaking out in conventional and social media, is eroding the two biggest barriers to ending sexual harassment in law and in life: the disbelief and trivializing dehumanization of its victims.”⁸⁵ Whatever one thinks about the changes underway, there can be no question that these social movements are influencing the expectations and interactions of both employers and employees.

Legal and regulatory factors are another potentially powerful source of external influence on organizations and the individuals within them. Part III will address workplace regulations in depth, as they, unlike societal norms and cultural change, require direct engagement by the employer. Other legal changes outside of employment, especially those related to civil rights such as marriage equality for same-sex couples and rejection of race discrimination in education and marriage, are more akin to the cultural influences just described, as they permeate society in ways that reverberate in workplaces as well.⁸⁶

In short, external influences on workplaces add yet another layer of complexity as we consider the power and limits of law in addressing harassment and other discrimination.

II. Organizational Culture—The Basics

The fact that there are so many individual and external factors over which an employer has little control raises the stakes for organizational culture as a tool for harassment prevention and response, and likewise for legal interventions to support effective use of organizational culture in this regard. Yet much of what we think of as organizational culture has little apparent connection with harassment policies and processes. This Part addresses the overarching function of workplace culture and some of the constraints on employers in developing that culture. The next Part will turn in depth to the choices that employers make about legal accountability and the effect of those choices on organizational values and employee interactions.

Most often, organizational culture is associated, from a business perspective, with an organization’s ability to achieve its goals. As a Harvard Business Review analysis put the point, “[w]hen aligned with strategy and leadership, a strong culture drives positive organizational outcomes.”⁸⁷ Whether those desired outcomes are for profit or other ends, a culture that encourages productivity, innovation, regulatory compliance, quality control, and other goals tied to the relevant market is likely to be considered successful.⁸⁸

Organizations take a variety of approaches to developing these shared “beliefs, values, behavior patterns, and understanding” that comprise workplace culture,⁸⁹ and popular business literature is flooded with guidance on how to develop a culture that works.⁹⁰ Whether through banners, wellness resources, and rewards programs, or mission statements, newsletters, and social gatherings, or the absence of any deliberate culture-creation efforts, employees come to understand the organization’s values, modes of working, and types of activities and behaviors that are well-regarded, tolerated, or rejected.⁹¹

A vast literature examines the scope and constitutive elements of organizational culture in employment settings, going back many decades and cutting across a variety of disciplines.⁹² To the extent law has been linked to organizational culture, it is mostly through the lens of compliance culture, where the aim is to generate a common understanding “about the importance or legitimacy of legal compliance vis-à-vis other pressures and goals.”⁹³ This is often accompanied by considerations of “tone at the top,”⁹⁴ and concerns about financial fraud and other white-collar crime.⁹⁵ Yet relatively little attention has been given to the relationship between workplace culture, discrimination, and harassment, until very recently.⁹⁶

A starting premise of this Article is that workplace culture can be a significant determinant of whether harassment and other discriminatory behaviors are likely to thrive. More specifically, employees in a collegial workplace will be more likely to identify and address harassment as outlier and unacceptable behavior than those in a hostile or contentious workplace where abusive modes of interaction are commonplace.⁹⁷ A burgeoning workplace-civility literature bolsters this view, indicating that greater attention to respectful relations among employees is likely to reduce tolerance for harassment.⁹⁸

Closely related is an organization’s commitment to diversity, equity, and inclusion (DEI) as a set of values and practices that inform the ways in which employees interact. In addition to its broader benefits, a DEI commitment has two crossover points related specifically to workplace harassment. First, vulnerable populations, whatever those are within the organization, need to know that the employer will take their concerns seriously, especially given individual-level barriers to reporting.⁹⁹ And second, without express attention, individuals in the dominant group may miss issues of importance to other employees because they are not affected directly.¹⁰⁰

Yet a workplace culture that encourages collegiality and mutual respect among employees at all levels of the enterprise is easier to promise than to create.¹⁰¹ Many employers express an interest in having a strong, cohesive, and equitable culture, for example, but the gap between expression and reality can be a large one.¹⁰² Consider, for example, the major corporations that recently have faced serious sexual harassment accusations notwithstanding the slogans (e.g. Alphabet’s “Do the right thing” motto, for example),¹⁰³ employee handbooks, and other culture and equity-promoting tools that declare an intolerance for harassing behavior.¹⁰⁴ The same is true for the policies and procedures that may demonstrate an employer’s interest in legal compliance but not in creating a culture that rejects harassment or other abusive behaviors, as discussed in more depth below.¹⁰⁵

Even when employers genuinely seek to create a workplace culture that fosters mutual respect and collegiality, the task itself is challenging. The sheer diversity of personalities and skill sets in any workplace, especially among supervisors and managers, can pose significant difficulties for achieving and maintaining an organizational culture that has a positive influence on the way people interact with each other.¹⁰⁶ Efforts to enhance collegiality and equity as part of workplace culture may also face objections from employees who argue that their free expression, creativity, or capacity to be themselves at work is impaired.¹⁰⁷ At the other end, some employees may urge the employer to go further, objecting to any willingness to tolerate communications or behavior that they find offensive.¹⁰⁸

These general challenges are amplified at various points in an organization’s lifespan. In a start-up phase, for example, all attention may be devoted to bringing a service or product to market, and those leading the enterprise may not have expertise, much less staff dedicated to working on these issues.¹⁰⁹ Indeed, as numerous accounts of “bro culture” at start-ups have indicated, issues associated with organizational culture and how coworkers treat each other may not be on the radar at all.¹¹⁰ For organizations that are struggling to survive or are severely resource-constrained even during a period of growth, a focus on workplace culture may sound like a diversion from core issues.¹¹¹ Even for stable or growing organizations, significant attention to coworker interactions may seem to detract from the mission or be seen as risky because of demonstrated or anticipated resistance.¹¹²

Yet as is true for most human enterprises, workplaces can be rife with conflict, and cultural expectations regarding interpersonal behavior and approaches to conflict resolution will emerge, whether or not they are stated expressly by the organization’s leadership. The next Part will turn to the ways in which these expectations and approaches are themselves cultural choices.

III. The Culture-Shaping Implications of Legal Accountability Choices

Choices that employers make about how they will satisfy legal requirements related to harassment prevention and response are not often thought of as part of workplace culture. Instead, “checking the box” is an apt descriptor for what many employers do, with counsel and human resources staff focused on ensuring that compliance requirements have been met.¹¹³

But this approach misses the mark, both theoretically and practically. When we remove the “human resources/legal” overlay, we can see that choices about harassment policy, reporting procedures, communication and employee trainings, and even decisions in individual cases are fundamentally about culture—that is, they are about guiding individuals and teams to support the organization’s mission. As with other aspects of workplace culture, these choices can impact productivity, effectiveness, reputation, and, ultimately, the organization’s stability and survival.¹¹⁴ Put another way, these choices communicate organizational values to employees, whether intentionally or not, and will influence the ways that employees interact with each other, with spillover effects on the overall culture of the workplace, and vice versa.¹¹⁵

Importantly, legal-accountability culture is distinct from compliance culture, though the two may seem similar because both have implications for an organization’s exposure to liability. The idea of a compliance-oriented culture is, in essence, to deter cheating or other unlawful conduct in service of work-related aims.¹¹⁶ These issues arise most often when employees might be tempted or even incentivized to violate policy or law as a means of achieving or exceeding performance-related goals that are tied to their success.¹¹⁷ By contrast, the abuse of power involved in harassment is not typically in service of individual performance goals¹¹⁸ or organizational success.¹¹⁹

The discussion that follows will apply this theoretical foundation and look closely at how harassment policy, procedures, and operations embody choices about workplace culture. The nine decision points discussed here include: policy design, communication, reporting options, employee training and “local” knowledge, privacy and retaliation protections, capacity-building for staff who handle complaints, alternate forms of conflict resolution, tailored sanctions, and transparency about how the process works. This will further set the foundation for Part IV’s discussion of the relationship between these choices and existing sources of law, and Part V’s consideration of whether law can do more to affect these culture-shaping choices.

A. Policy Drafting and Review

The starting point for most employer decisions about harassment and discrimination is the organizational policy. In a sense, this is a straightforward choice in that most employers focus on tracking legal prohibitions against discrimination,¹²⁰ though of course they are free to go beyond in ways that will be discussed in Part IV.

But from an organizational culture standpoint, two other choices are significant: how the policy will be written and how it will be reviewed and revised over time.

While policy writing is frequently seen as a lawyer’s or human resources task to ensure that compliance requirements are met,¹²¹ the policy’s on-the-ground meaning—its influence on workplace culture—derives from the understanding and experience of the employees who are its “end users.”¹²² If the primary driver of the writing process is compliance, the language choices are likely to sound legalistic by contrast to communications that are designed to build organizational culture. There also may be less incentive to make the policy user-friendly; compliance needs can be satisfied without the extra work that goes into having the policy be a vehicle for advancing the organization’s values.

An approach that recognizes a harassment policy’s cultural relevance would, for example, incorporate into the drafting process questions about clarity and accessibility. Some examples:

Are the prohibited acts described in a way that is easy for employees to understand?

Are there examples to help employees draw lines between permissible and impermissible conduct?

Are the procedures for filing and processing a complaint made clear to potential users of the system and those implementing the policy?

By contrast, treating the policy as “off to the side” and designed primarily to ensure compliance rather than as an integral element of organizational culture will lead predictably to a policy that is less accessible to employees, signaling in turn the diminished value they should give to it.

A related set of choices concerns the policy review process. The default, compliance-oriented approach would lead an organization to review a policy only in response to changes in the law. Treating a policy as a tool for building organizational culture would suggest a more participatory approach. Among the questions an employer might consider:

Is the policy subject to regular review and revision to ensure that it remains vital in codifying or reinforcing organizational culture?

Do people who have been part of a policy enforcement process, whether as complainants, respondents, witnesses, or advisers, have a meaningful opportunity to offer input?

Do other employees have an opportunity to pose questions and provide comments?

While these forms of engagement are not required by law, skipping them is a lost opportunity for culture-building and potentially a signal that the employer does not see its policy as embodying commitments at the heart of the organization’s relationship to its employees.¹²³ Creating an open and ongoing policy-evaluation process, on the other hand, communicates a depth and seriousness of cultural commitment, unlike the reactive bursts of policy-related activity that often follow an incident but are not sustained after attention moves on.

B. Communication

Even a well-crafted policy will have little influence in the organizational environment unless employees are familiar with it.¹²⁴ From a compliance perspective, an onboarding training and a periodic email or online refresher may suffice. But from a workplace-culture standpoint, both of those, without more, will convey to employees that the policy is a minor player in the life of the organization.¹²⁵ Here, questions that might be considered include:

How do employees learn about the policy? Is it part of a generic package of employment policies or is it linked to the organization’s goals and values?

Is the policy easy to find? Is it clear where employees can go if they have questions?

What kinds of reminders do employees receive?

What is the focus of and purpose conveyed by announcements about training? That is, are communications about trainings focused on compliance or framed in terms of organizational values?

Are messages tested with employees and evaluated for clarity and effectiveness?

In short, the central issue from a workplace-culture standpoint is not whether the employer has a policy and issues reminders, but rather how that employer links its policy communications to the organization’s shared beliefs and values and whether employees understand what the employer is trying to say.

C. Systems for Reporting and Responding to Complaints

As with policy, a culture-oriented analysis of an employer’s system for receiving and responding to complaints and concerns will add considerations that a compliance focus is likely to miss. The key, again, is not the words on the page but the meaning of those words within the workplace.

One foundational choice concerns the options given to employees about where to go with concerns about harassment or other discriminatory or abusive behavior. To satisfy compliance requirements, organizations must provide a clear path by which employees can report complaints about harassment or other discrimination and seek redress.¹²⁶ Most often, this is accomplished by directing employees to a supervisor or human resources staff.

Yet think about the factors elaborated in Part I that influence employees’ decisions about whether to come forward with a concern about themselves or a coworker. While many of those are deeply personal and outside of an employer’s control, a system that does not take account of individual-level barriers to reporting is unlikely to pick up much of the harassment or other problems on the ground. Design choices that are relevant here include, for example:

Are there multiple entry points to the system so that an employee can choose to go either to someone they know or to someone who is not in their circles?

Is it easy for an employee to report online or in person, so that individuals can choose between face-to-face and less direct ways of sharing their experiences or concerns?

Are the reporting options structured in a way that makes them accessible to employees of all ranks and roles within the organization? Reporting options may look different (or may need to be communicated differently, as discussed below), for employees in the field as compared to those in office locations, and for those in lower-level or more senior positions.

Does the online reporting option explain clearly what will happen after someone submits a report? Do the supervisors or others charged with receiving in-person reports know enough to explain the process to an employee?

How clearly does the system address questions about confidentiality and retaliation? And at what point in the process (before or after reporting) are these concerns addressed?

As discussed at the outset, reporting harassment remains difficult for many people, and individuals will vary in their preference for reporting a concern to a known colleague, a stranger in another office, or via an online form or telephone hotline.¹²⁷ Having a range of access points, ideally with input from employees themselves, increases the likelihood that concerns will come to the attention of the organization’s leadership rather than being stymied because employees distrust or are uncomfortable with the one or two options on offer.¹²⁸

Importantly, these multiple access points can, if they are implemented effectively, become a positive part of the fabric of workplace culture. By placing accountability mechanisms throughout the organization, an employer may be able to reinforce that behavioral norms in the workplace are not solely the responsibility of human resources or other “back of the house” staff.¹²⁹ Alternately, when seen solely through a compliance lens, reporting becomes a side activity, distinct from culture, and may be understood to be aberrational rather than integral to the employer’s expectations and employees’ shared understandings of their roles.¹³⁰

D. Training and Local Knowledge

Training is another employer-sponsored activity that often falls into the “check the box” category, with responsibility for training design and implementation typically sitting with human resources staff or an organization’s lawyers.¹³¹ Yet, as should be apparent at this point in the argument, training is essentially a cultural intervention, even if it is not understood in that way by the organization. As with policy, approaching training as a “must do” compliance requirement, rather than as core to the organizational mission, will send a cultural signal that the organization views the covered topics as outside of what matters most.¹³²

Culture-oriented questions here would be similar to those noted above, with a focus on the link between training, organizational values and the employee experience at all levels of the organization:¹³³

Does the training express values in addition to behavioral rules and reporting information?

How does the training account for the ways in which shame, embarrassment, fear of social and job-related retaliation, and other individual-level factors may be barriers to reporting?

What do evaluations show about employee absorption of the training content, and does the evaluation process include meaningful engagement by employees and refinement of future training?

Related but often missed when thinking about training is the importance of ensuring that there are enough “local experts” who understand the organization’s policy along with the basics of reporting and the complaint-resolution process.¹³⁴ This draws again from the individual-level factors discussed in Part I, and the idea that many people are most comfortable turning to someone they know and trust for help and information.¹³⁵ The focus on local experts also builds on the concept of “herd immunity”—that not every individual needs inoculation for the community to be protected from a particular disease.¹³⁶ Carried over to the employment context, the idea is that it is essential to diffuse enough knowledge about harassment policy and procedures so that the information permeates a workplace and anyone in the community can find what they need from a coworker if they do not have the information themselves.

E. Privacy and Retaliation Protections

Protection against retaliation and policies for protecting the privacy of employee complaints also sound in the register of legal compliance, not workplace culture. But again, both are indicators of an employer’s values and expectations, and each conveys whether the employer is sensitive to the challenges individuals might face when dealing with harassment.¹³⁷ As the individual-level factors discussed in Part I indicate, employees may hesitate to report a concern if they believe their coworkers will hear about it.¹³⁸ A compliance-oriented policy typically will remind employees about limits on confidentiality and that information will be shared with the alleged harasser as part of an investigation. When approached through a workplace-culture lens, the same information can be provided not as a stand-alone safeguard of the employer’s needs but instead with a link to broader organizational values, making clear that the employer understands the complaining employee’s interests in privacy and ongoing ability to work and will do all it can to protect those interests.¹³⁹

F. Capacity-Building for Staff who Handle Complaints

At the end of the day, policies are only as effective as the people who implement them and the resources available to support those people, which means that staff who address harassment will themselves shape workplace culture in addition to ensuring compliance. For this reason, training for those who implement the employer’s policy is significant not just for avoiding liability but also for communicating the employer’s values related to fairness, impartiality, and sensitivity to the issues involved.¹⁴⁰ Ill-trained staff who are not capable of educating employees about the process and responding effectively to questions and concerns will reveal, even if unintentionally, how the employer values its employees.¹⁴¹ By contrast, if those who handle complaints, whether in human resources or other parts of the enterprise, earn a reputation for being effective, they may be among an employer’s most valuable resources for both addressing harassment and reinforcing the employer’s core mission.

G. Alternate Dispute Resolution

When reporting complaints or concerns, many employees want only to have the conduct end so they can work unimpeded by harassment. But in some settings, a full investigation can take time and cause disruption in the local environment, triggering reputational concerns and other individual-level barriers to reporting.¹⁴² Decisions about whether and how to offer expedited, context-sensitive options for addressing incidents are thus, like others already discussed, not only part of the policy-and-procedure world of human resources and legal compliance but also part of the workplace culture.¹⁴³

H. Sanctions and Other Responses to Policy Violations

The penalty and response structure for harassment-policy violations also may influence an individual’s willingness to make a report or even express a concern. As in the criminal law context, workplace penalties that are seen as disproportionately harsh may lead employees to avoid reporting out of concern for themselves or their colleague.¹⁴⁴ At the same time, sanctions that are seen as inconsequential or unduly light may also lead employees to conclude that reporting an incident is not worth their time or reputational risk.¹⁴⁵

Calibrating sanctions to the nature of workplace misconduct is a law-driven activity in that unduly weak sanctions may create liability for an organization. Yet through the workplace-culture lens, it becomes easier to see how sanctions express organizational values, too. Treating sanctions as part of workplace culture also widens the frame for thinking about types of interventions that might be effective for culture-building as well as for penalizing wrongful behavior. In a local environment where misconduct has taken place, for example, an effective response would address not only the individual responsible for a policy violation but also the surrounding team. This could include attention to dynamics that preceded or supported the wrongful behavior as well as the effects of the misconduct, investigation, and penalty on the broader group.¹⁴⁶

I. Transparency/Information-Sharing

Information is essential to culture-building as well—what is provided and what is withheld is another mode of communicating organizational values. With respect to harassment in particular, an employer’s choices will signal whether an employer is serious about generating trust in its system for handling complaints.¹⁴⁷ Without information showing that the system is prompt and effective in addressing concerns, employees may not be motivated to bring complaints given the potential individual-level costs. Yet too much information—such as detailed reporting that can be traced back to individual cases—may reduce employees’ willingness to come forward with complaints or to participate in the process as a witness or even a respondent. Tensions exist as well with the privacy protections that apply ordinarily to personnel matters.¹⁴⁸ Reporting aggregate data can help strike the balance and, in doing so, convey an employer’s seriousness and sense of accountability to its workforce.¹⁴⁹

IV. Legal Accountability and the Challenge of Extra-Legal Harms

This Part turns more closely to the ways in which law interacts with the culture-shaping legal-accountability choices just described. Traditional legal authorities, such as statutes, regulations, and court-made doctrine, are important, of course, and I will note them briefly here.

But there is an additional area where law—or, really, the absence of enforceable law—exerts significant influence on workplace culture and the prevalence of harassment and other forms of discrimination.¹⁵⁰ This is the area of extra-legal harms—that is, the behaviors that are not legally actionable and hence not the subject of compliance requirements but can still be as detrimental as cognizable discrimination to employees who experience them.

Most forms of implicit bias and microaggression fall into this category. They do not demonstrate the invidious intent required to satisfy the disparate treatment standard applied to most employment discrimination claims and are regularly deemed insufficient to prove the existence of a hostile environment.¹⁵¹

In addition there is a subcategory that I call “low-grade harassment,” meaning the intentional acts that are similar to cognizable misconduct but insufficiently severe or pervasive to give rise to liability.¹⁵² These acts, in other words, are different in degree but not in kind from conduct that would be considered unlawful.

From a workplace-culture standpoint, the critical question is whether and how an employer addresses these kinds of conduct that may look and feel like harassment but are not covered by antidiscrimination law. The concern is not only for the affected employees but also for the workplace as a whole. Ambiguity at the border of permissible and impermissible conduct can spill over to confusion about what kinds of conduct the organization deems acceptable. This in turn may undermine efforts to protect against liability and, further, cut against other efforts to build a culture where employees feel valued and comfortable bringing forward concerns.

A. Traditional Sources of Law

The body of law governing workplace harassment is itself complex.¹⁵³ In addition to statutes and case law that directly address discrimination,¹⁵⁴ there is criminal and tort law regarding nonconsensual touching;¹⁵⁵ labor law that governs unionized workforces;¹⁵⁶ industry-specific statutory and regulatory oversight;¹⁵⁷ labor and tax laws that affect the classification of employees and contractors;¹⁵⁸ immigration law that can make some employees more or less vulnerable to exploitation;¹⁵⁹ family and medical leave laws that may become a point for negotiation or coercion;¹⁶⁰ and the list goes on.¹⁶¹

Beyond these formal bodies of law there are, to use Robert Cover’s words, the “narratives that . . . give [them] meaning.”¹⁶² These narratives may be especially influential in the workplace where few people will ever file formal complaints, much less bring litigation,¹⁶³ but many will have views about the kinds of interactions among coworkers the law permits and forbids, and about how managers ought to respond when conflicts arise.¹⁶⁴

B. The “Law” of Extra-Legal Harms: Microaggression, Implicit Bias, and Low-grade Harassment

In addition to defining prohibited conduct, the sources of law just described also signal what kinds of behaviors and comments are permissible. Yet some of this permissible activity is experienced as harassment by targeted employees and their coworkers, negatively affecting workplace terms and conditions as much as if the conduct was unlawful. But the law leaves a vacuum here, and for employers focused primarily on legal compliance, the idea of addressing these harmful but not unlawful behaviors and comments may not register at all.

From a workplace-culture standpoint, the challenge is that by leaving microaggressions, implicit bias, and low-grade harassment unaddressed, employers may convey that experiences of these behaviors do not “count” as concerns. To the extent these interactions look and feel similar to those prohibited by formal policy, an employer’s disregard of them also may signal disinterest in addressing conduct that is prohibited.¹⁶⁵ In this way, the category of extra-legal harms itself may be a potent barrier to addressing workplace harassment.

1. Microagression and implicit bias

Microaggressions in the workplace include behaviors, comments, and other interactions that employees may experience as harassing even if not intended that way by a supervisor or coworker.¹⁶⁶ An extensive literature documents their harmful effects, including on individuals’ health and workplace participation.¹⁶⁷ Yet absent a dramatic change in the law, an employee’s experience of microaggressions will not give rise to a cognizable claim.¹⁶⁸

Implicit biases likewise may result in practices or decisions that reduce opportunities for subgroups of employees based on race, gender, and other aspects of identity.¹⁶⁹ Yet evidence of the link between implicit bias and discriminatory acts has been difficult to establish,¹⁷⁰ and although courts have acknowledged the existence and potential effects of unexpressed biases,¹⁷¹ implicit bias, without more, is not generally understood as grounds for employer liability.¹⁷²

2. Low-grade harassment

Conduct in the category I call “low-grade harassment” is similar to implicit bias and microaggression in its potential for detrimental effect on others and in its non-cognizability as a legal harm but different because the behavior is understood to be intentional. Think here of the unwanted, intentional comments, physical contact, and other behaviors (such as staring at a colleague’s body parts) by coworkers, supervisors, or others that negatively affect the targeted individual’s experience at work based on sex, race, or other protected aspects of identity but are ineligible for a court-ordered remedy because they are infrequent or come from someone without direct authority over the targeted employee.¹⁷³ Low-grade harassment thus occupies a place somewhere in between what is clearly prohibited and what is widely acceptable.¹⁷⁴ In this sense, and because it looks so much like prohibited behavior, low-grade harassment has even greater potential than microaggressions and implicit bias to cause confusion for employers and employees.

The Supreme Court arguably created the category of “low-grade” harassment when it concluded that sexual harassment, to be actionable based on a hostile-environment theory, must be “severe or pervasive.”¹⁷⁵ That is, some amount of unwanted touching and comments would be permissible but a larger quantum of the same conduct would cross the line and be subject to judicial remedy.¹⁷⁶ By anchoring the standard in this way, a non-trivial number of cases reject claims involving unwanted and explicitly sexualized interactions.¹⁷⁷

Even in cases involving less severe incidents, a comment or touch that some would find funny and others would call unfortunate or rude (e.g. “Nice skirt, it would look better on my bedroom floor”) may be experienced as disparaging and discriminatory by the person on the receiving end.¹⁷⁸ Yet, as the Supreme Court has explained, “‘simple teasing’, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’”¹⁷⁹

The Court’s reluctance to step in appears to be tied to perceptions that judicial intervention may chill permissible behavior or amount to enforcement of a civility code at work.¹⁸⁰ Hostile-environment doctrine, the Court has emphasized, “does not reach ‘the ordinary tribulations of the workplace, [including] ‘sporadic use of abusive language’ or generally boorish conduct.”¹⁸¹

Lower courts have echoed this reluctance, highlighting the limits on their capacity and legitimacy when reviewing internal workplace dynamics. As many have written, “[f]ederal courts do not sit as a super-personnel department that reexamines an entity’s business decisions.”¹⁸² To the extent courts are asked to evaluate the meaning of particular remarks or conduct in context, they often shy away from what may seem like a sociological enterprise.¹⁸³ Scholars have observed, too, that courts “lack the local knowledge to craft effective responses to the deep and complex equality problems that arise in individual workplaces.”¹⁸⁴

C. Options for Responding to Extra-Legal Harms

The similarity to legally impermissible conduct of low-grade harassment, in particular, presents special challenges for individual workers and organizations in deciding whether to report or respond to concerns. It may, for example, prompt potential complainants toward confusion or self-doubt (“is what happened bad enough?” “am I being too sensitive?”). It may also provide cover and reinforcement for those who seek to discriminate or harass (“just so long as I don’t cross the line” or “I didn’t do what Harvey Weinstein/Bill O’Reilly/others did so I’m fine.”).¹⁸⁵ Arguably, too, the expansiveness of legally permissible harassment may have led numerous corporate boards to discount liability risks and harms caused by “high-value” employees, endorsing a sliding scale that created opportunities not only for the Harvey Weinsteins and Bill O’Reillys of the world but also for senior executives who engage in disturbing but less obviously egregious harassment and lower-ranked purveyors of unwelcome comments and conduct.¹⁸⁶

These challenges generate difficult, though often-overlooked, questions for employers at the organizational-policy level. Even employers inclined toward a strict legal compliance approach must wrestle with how to draw lines between comments and actions that are permissible if they are occasional but not if they are frequent.¹⁸⁷ And as discussed in Part III, they must communicate those lines clearly to employees and to those responsible for handling complaints so that workplace policy is not mistakenly—or deliberately—over- or under-enforced.

One response to this difficulty could be for legislatures and courts to broaden the scope of discrimination law to encompass more harassing conduct. Yet while many have argued,¹⁸⁸ and I would agree, that lines should be moved in that direction, the problems caused by low-grade harassment will not be resolved fully by doctrinal adjustment. Line-drawing at the margins is always challenging. With courts already reluctant to oversee workplace interactions, some amount of harassing and discriminatory conduct will remain permissible, with the ambiguity-generating effects just described.

This context further illuminates how employer responses to permissible and impermissible conduct creates an accountability culture that affects the broader workplace culture. As described earlier, an overly legalistic approach will miss the opportunity through policy and training to address local-level behaviors that do not generate liability risks but do cause harm to employees and create dysfunction on workplace teams.

This is not to suggest that employers should prohibit any behavior that an employee might find objectionable or require every misstep to be formally investigated and sanctioned. Workplace norms and culture are established in many ways, and a fully disciplinary approach may crowd out alternate responses to harassment and other harmful behavior.¹⁸⁹ Put another way, if formal law or policy violations are the sole or primary prompt for addressing workplace interactions, employers may miss opportunities to address low-grade harassment and may disincentivize employees, including supervisors, from stepping in to address concerns.

V. The Power and Limits of Law

Building on the landscape set out thus far, this Part takes a closer look at the power and limits of law to influence workplace culture in relation to harassment prevention and response. I focus especially on how legally driven interventions affect the local workplace norms and practices that shape most employees’ day-to-day experience. This is not to say that “tone at the top” is unimportant; to the contrary, employer messages can be a valuable way to set expectations for how employees will conduct themselves, as suggested by compliance literature and doctrine discussed above.¹⁹⁰ Yet good policies and strong leadership statements do not necessarily translate to effective implementation on the ground, as shown repeatedly in #MeToo stories of corporations mismanaging harassment allegations.¹⁹¹ Policies, trainings, and accessible reporting options similarly are unlikely to have their full intended effect unless they account for the individual-level barriers that inhibit many employees from disclosing misconduct or helping a colleague.¹⁹² And all of these interventions require sustained attention and effort if they are to be integrated meaningfully into the workplace culture.¹⁹³

Given these challenges, it may seem that law has little to offer, especially relative to other kinds of employee-engagement strategies focused on creating an inclusive workplace.¹⁹⁴ Still, for many employers, legal requirements will remain a primary touchstone and motivator for efforts to prevent and respond to sexual harassment.¹⁹⁵ With this in mind, the discussion that follows will examine several points of entry for legislative and doctrinal intervention.

Returning to the framework of Part I, I begin by looking briefly at doctrinal change as a potential influence on individual behavior, the surrounding environment, and employer choices regarding policies and practices. I then consider in depth whether and how regulatory interventions might prompt employers to integrate harassment prevention and response activities more fully and intentionally into workplace culture, concentrating on larger-scale observations about organizational policy and reporting systems, workplace structure, and other guideposts for employee interactions.

A. Doctrinal Change and Workplace Culture

Recall that an individual’s perception of law is only one of many influences on a person’s decision to report or confront harassment at work. Shame, fear, a limited sense of personal efficacy, reputational concerns, and many other factors are likely to be far more significant than legal requirements in determining how employees respond when they experience or observe harassment.¹⁹⁶

Against this backdrop, the question here is whether there is any room for law to shift behavior at the individual level.¹⁹⁷ As a thought experiment, we might imagine a world in which legal doctrine is communicated clearly enough for employees to understand when their employer is obligated to address harassing behavior.¹⁹⁸ With that clarity, we might expect some increased activity by those who currently hesitate to report or step in because of haziness about legal boundaries.¹⁹⁹ On the other hand, the “severe or pervasive” standard in federal harassment law is likely to remain difficult to meet, even if it is relaxed somewhat, given courts’ reluctance to intervene in workplaces as described in Part IV.²⁰⁰ Greater clarity about that high bar might then be an inhibitor to reporting, especially for employees who had assumed that all forms of harassment were prohibited.²⁰¹

There is also little reason to think that more legal knowledge or a reduced threshold for claims will deter individuals whose harassing behavior stems from an anti-social personality disorder.²⁰² Deeply held views about gender and power, prior life experience, and opportunities created by workplace hierarchies and physical isolation have been identified, too, as far more dominant influences than awareness of the state of the law.²⁰³ That said, there are those who take cues from their surrounding environment about what behaviors are acceptable.²⁰⁴ It is conceivable that, for this group, clearer and more expansive doctrine will prompt stronger messages from leadership that employees should rein in any inclinations to harass. On the other hand, the doctrine is likely to continue to tolerate quite a lot of low-grade harassment, as just discussed, which may limit the power of those messages to prompt behavior change.

Still, workplaces do not exist in a vacuum and, as discussed in Part I, other law-related changes can influence what individuals tolerate from each other and expect in organizational policies and practices. Yet highly visible legal events, such as the convictions of Bill Cosby and Harvey Weinstein, are relatively few and far between.²⁰⁵ In most nationally prominent #MeToo stories, whether about media figures, comics, or celebrity chefs, legal doctrine has been on the sidelines.²⁰⁶ When law does play a role, the focus has been largely on criminal offenses or employment termination packages (e.g. Les Moonves and CBS) and non-disclosure agreements (e.g. Fox News) rather than on changes to harassment jurisprudence that might influence workplace norms.²⁰⁷ Indeed, most law-reform efforts in the wake of #MeToo have focused on mechanisms that affect the filing and settlement of lawsuits, such as statutes of limitations and non-disclosure agreements, or on reiterating responsibilities of corporate boards, rather than on fundamental questions of what conduct should be reached by discrimination law.²⁰⁸ As is true for individuals, there is little reason to think that marginal transformations of harassment doctrine will permeate societal views in ways that reshape dynamics within workplaces.

B. Regulatory Interventions at the Organizational Level

Given the constraints on doctrinal change, a pressing question, then, is whether other legal interventions can encourage employers to move beyond the minimum required for litigation defense and develop a workplace culture that deters harassment and supports reporting and effective resolution when incidents occur.²⁰⁹ Several of the organizational touchstones considered in Part III—policy, reporting systems, and training—are potential entry points, as are broader employer actions regarding organizational structure and workplace culture.

In essence, I argue that regulatory intervention related to policies and reporting systems is helpful but unlikely to have a substantial influence on workplace dynamics. Structural changes to an organization, by contrast, could provide meaningful protection but are largely unreachable by legal interventions. If law is to exert influence on workplace dynamics, workplace culture becomes a key site, and the discussion below will focus most attention on the possibilities there, including training, data-sharing, and more.

1. Policy and reporting systems

Employer policies, as a version of workplace “law,” are relatively straightforward to regulate. A government agency could require employers to have clear, protective policy language and post an employee bill of rights or other information about sexual harassment protections.²¹⁰ Taking guidance from the discussion in Part III, the agency might even recommend that employers have a regular policy-review process to seek employee input.

At the end of the day, though, policies in handbooks and on websites—and even on office bulletin boards—have not shown themselves to be a significant force in deterring sexual harassment.²¹¹ This is not to say that policies are unimportant. To the contrary, they can express important employer values and commitments, and posting them can provide public reinforcement.²¹² But as a singular feature in a workplace where most employees are unlikely to read the policy in detail (even if it is hanging on the office wall),²¹³ much less bring formal complaints,²¹⁴ organizational policy language is an improbable driver of change. Consequently, while legally mandated changes to harassment policies and agency-imposed posting requirements can strengthen basic protections, their impact on workplace culture is likely to be minimal.

An employer’s procedures for receiving and responding to complaints are arguably a more effective intervention point because their function is to bring problems to the employer’s attention. Having accessible and understandable reporting systems can be a positive counterweight to the many individual-level factors that may inhibit an employee from seeking help.

With this in mind, regulators might require employers to post complaint procedures widely, adopt or expand anonymous compliance hotlines, and highlight government resources as complements or alternatives to the employer’s systems.²¹⁵ They could impose penalties for anonymous reporting lines that turn out not to be anonymous,²¹⁶ and they could require employers to explain their procedures in multiple languages where appropriate.

These kinds of changes might influence the workplace culture by signaling the employer’s interest in hearing about concerns, though much will depend on the effectiveness of the employer’s response. Ultimately, though, complaint procedures, like policies, tend to be relatively static. As a result, they are not front of mind for most employees and changes to them are unlikely to influence daily workplace dynamics.²¹⁷

D. Workplace Structure

By contrast, workplace structure is a factor that has daily impact. Individuals working in small groups where power differentials are significant, or in isolated or highly decentralized workplaces, or in workplaces where heavy alcohol consumption is the norm tend to be more vulnerable to sexual harassment than workers in other settings.²¹⁸ Yet it is difficult to imagine any branch of government mandating that an employer change its business structure to reduce these risks.²¹⁹

Still, the idea of government intervention in work environments has some support from existing practices. Health and safety regulations direct certain aspects of how employers structure their workplaces, and national security regulations control others.²²⁰ One might argue that sexual harassment is an occupational health and safety hazard and should be treated as such,²²¹ and that it is also a corruption-like abuse of power that could, in some instances, pose national security risks.²²²

But the structural changes that might make a difference here—such as having teams of supervisors instead of individualized oversight; restrictions on alcohol consumption in entertainment businesses; video monitoring or other alterations to physical spaces where abusive behavior is more likely—are more nuanced than the standardized safety masks, rubber gloves, and other requirements typically in place for managing non-human workplace hazards or the detailed background checks and extra layers of cyber safety for managing security risks related to sensitive data and analysis. As a result, while it is interesting to consider how existing regulatory structures might carry over to sexual harassment prevention efforts, regulation to achieve structural change in the diversity of American workplaces is unlikely to gain traction.²²³

E. Workplace Culture

This brings us to workplace culture. But culture, whether in or outside a workplace, is not an obvious site for legal intervention. Statutes and case law, with their ambiguity and distance from interpersonal interactions, are unlikely to affect, except in the most attenuated ways, the shared understandings, values, and behaviors among an organization’s employees.²²⁴ Even further, regulation risks generating the type of culture that focuses on compliance at the cost of attention to the on-the-ground employee experience.

Still, thoughtfully crafted regulation has potential to support an anti-harassment workplace culture by linking legal accountability with employee engagement through the kinds of questions set out in Part III. Requirements that employers not only conduct regular trainings but also evaluate their effectiveness, assess employees’ experience with complaint processes, and report publicly, in the aggregate, on their handling of harassment complaints all put a focus on how employees understand and experience the employer’s efforts. Engaging the workforce in these ways may help convey that sexual harassment prevention and response is more than just a compliance obligation for the organization’s human resources or legal department. Settlements of sexual harassment suits can serve a similar function, binding employers to these and other modes of ensuring that employees have sufficient information about workplace policies and resources and linking those policies directly to organization values.²²⁵

Before elaborating, I want to be clear about the limits of the claim here. Employer trainings, surveys, and publications are not considered generally to be behavior-change tools.²²⁶ There is also the risk, and the reality in many settings, that these requirements will be managed like other compliance requirements—by doing the minimum necessary to avoid penalty. One could argue further that this type of box-checking does more harm than good because a begrudging fulfillment of the obligation may provide an extra signal of the employer’s disinterest. Even if senior management carries out its responsibility with neutrality, it is possible that training will be administered at lower levels of the organization in ways that exacerbate ongoing harassment or other local vulnerabilities. It is similarly true that surveys might be administered in ways that deter disclosures and that entities might comply with reporting requirements in ways that obscure concerns.

Still, I want to suggest that even weakly delivered training and limited surveys and reporting may be promising, even if unglamorous, sites for law to exert influence on workplace culture. I will turn first to training requirements and then address survey and reporting requirements more briefly.

First, consider a workplace where employees are trained only on arrival if at all and the employer addresses questions about its harassment policy and procedures individually and with one-off responses. A training mandate sets a new anchoring point, requiring a company-wide plan and an eye toward prevention, even for entities that do the minimum to comply.²²⁷

In addition, a requirement can provide a foothold for employees who are interested in addressing the effects of harassment on workplace culture.²²⁸ Messages from trainings might reinforce efforts that employees are already making from within, and some employers may seek employee volunteers to assist with implementation or evaluation. Trainings, especially in groups, also can provide a vehicle for employees to connect with coworkers (even if to complain about what was offered) and possibly to advocate for additional change.²²⁹

Importantly too, even weak training can embed knowledge locally—if all employees are trained and know that others are trained as well, the workforce’s information baseline expands. And while training may not prompt behavior change, it can increase the likelihood that more people notice when behaviors are impermissible or close to the line. This diffusion of information about how to address problems may help reduce individual-level barriers to reporting and provide a reference point for stepping in (e.g. “you remember what they said in that training”).²³⁰ Even when awareness does not carry over into action, particularly in workplaces with low commitment or capacity to strengthen the overarching workplace culture as described in Part II, training requirements may provide a starting point that makes those next steps possible.

By surfacing issues related to employee misconduct, a required training can also put a fresh focus on employers’ systems for receiving and responding to complaints and other workplace conflicts. At its best, this additional attention may lead to improved systems and possibly an interest in strengthening conflict-resolution skills for managers and others in the organization. In this sense, a training requirement has direct benefits for cultural awareness and potential to catalyze additional attention and action in a workplace that otherwise handles these issues through a compliance lens.

While training may shape culture by funneling information about policies and resources directly into the workplace, employee surveys and public reporting generate data that can affect workplace culture by exposing difficult, or positive, dynamics that may not be picked up through the formal complaint process. Whether legally required or strongly encouraged as governmentally endorsed best practices, these methods follow in the tradition of information-forcing techniques that help expose troubling patterns and shift practices.²³¹ In Britain, for example, companies with more than 250 employees are required to report information about compensation by sex, and while there are critiques of the requirement and its implementation, even limited data enables more rigorous evaluation and advocacy than when information is purely anecdotal.²³² An even closer example comes from higher education in the United States, where some states require schools to publish information about sexual misconduct complaints and resolutions.²³³ Neither the British nor the U.S. requirement has a direct tie to culture-change efforts but both reflect an understanding that addressing harassment and other discrimination requires more than legal compliance aimed at the most severe or pervasive misconduct.

F. Workplace-Culture Interventions, as Applied

Regulatory requirements of training, surveys, and public reports are blunt and often frustrating instruments, even with their potential to reduce workplace harassment and improve employer response. They impose costs in time and funds spent on compliance, often through cottage industries of trainers and survey administrators, that may be consequential for small or struggling enterprises.²³⁴ They are typically not sensitive to the contexts of diverse sectors, some of which already may face heavy training requirements and others that have employees who are not online or are otherwise not gathered easily, making information delivery difficult. They also have the potential to reinforce a compliance orientation toward harassment, which may be in tension with creating a culture of collegiality and trust among coworkers that itself deters harassment and encourages reporting.

These costs can be mitigated, however, by government actors working in partnership with employers. By providing model trainings, surveys, and reporting templates that are responsive to diverse sectors, agencies charged with addressing discrimination can contribute proactively to broader workplace-culture change, which traditional enforcement actions are less likely to accomplish.²³⁵

The New York City Human Rights Commission’s work on sexual harassment provides a helpful illustration. In the wake of #MeToo disclosures and media coverage, the New York City Council enacted an ordinance requiring annual sexual harassment training.²³⁶ The ordinance specifies that the training be interactive, with examples, and include coverage of both legal terms and workplace-culture concepts like bystander intervention.²³⁷ Notably for purposes here, the ordinance also mandates that the City’s Commission on Human Rights create and offer at no charge an online training module that would enable compliance, so long as the employer also provides employees with information about how to bring sexual harassment claims in their own workplace.²³⁸ The ordinance does not require that employers use this training, characterizing it instead as “a minimum threshold” that “shall not be construed to prohibit any private employer from providing more frequent or additional anti-sexual harassment training.”²³⁹ The Commission previously had held hearings in which it received testimony from a variety of employees and employers along with experts on addressing sexual harassment and other workplace challenges.²⁴⁰ This provided a foundation for the diverse situations and sectors that are depicted in the city-created training, increasing the likelihood that the training would be relevant to many different local environments. Importantly, too, this training is part of a broader city-sponsored campaign to address sexual harassment, which also includes workplace-posting requirements and a social media and public advertising campaign designed to reinforce an anti-harassment norm.²⁴¹ As a result, neither the posting nor the training requirement functions as an isolated effort, likely to be disregarded or forgotten. Each, instead, is part of an expansive effort directed at cultural expectations as well as policy and law enforcement.

At the federal level, an education initiative called It’s On Us provides another interesting example. The project, which encourages students and others to pledge to raise awareness and fight against sexual assault, originated in the Obama administration, after the White House Task Force to Prevent Sexual Assault reported on the need for broad-based engagement efforts.²⁴² Unlike the New York City campaign, which was linked closely to compliance requirements, this effort derived its momentum from a social movement that had arisen around campus sexual assault and relied on celebrities as well as campus-based organizations to spread the word. But similar to the City’s effort, the federal It’s On Us initiative provided easy-access materials for students and schools to generate or support climate-oriented work on campus.²⁴³

While development of toolkits, training materials, social media campaigns, and public-service announcements is often the domain of not-for-profit organizations working with their constituents, these are also vehicles available to governments that seek to further law’s impact in difficult-to-reach contexts. With respect to sexual harassment, in particular, these initiatives may be among the most important ways to support changes in workplace culture.

Conclusion

When we take full account of the individual, organizational, and societal factors that influence an employee’s experience at work, it is unsurprising that harassment, especially sexual harassment, persists in many workplaces. With traditional sources of law having had limited impact, the increase in attention to workplace culture as a source of change appears promising, especially as a way to address the day-to-day “local” interactions that shape employees’ experiences.²⁴⁴ Yet law remains influential because employers will continue to face choices about legal accountability as they develop and implement workplace policies.²⁴⁵

The problem is that an approach delinking legal accountability from workplace culture misses the ways in which choices about compliance can create additional barriers to effective harassment prevention and response. As I have argued here, harassment policy, communications, and trainings are elements of culture-creation, not just protection against liability. When they are generated and implemented through a compliance lens, employers may satisfy their general counsel but will be unlikely to improve the experience of employees, except perhaps at the margins.

By contrast, an approach that makes the employee experience its focal point will use policy and training requirements to create a more seamless set of cultural expectations for how employees will interact. This reframe of legal accountability—from obligation to an opportunity for culture-creation—recognizes that, for the targeted employee, harassing behavior will have a negative impact on productivity even if the behavior would not give rise to liability. This becomes apparent when considering low-grade harassment, as described above, as well as microaggressions and manifestations of implicit bias that do not expose a firm to liability but most certainly have consequences for employees on the receiving end.²⁴⁶

This is not to say that an employer must respond in an identical way to all workplace interactions that an individual employee experiences as harassing. But if legal accountability is the sole driver, severe or pervasive misconduct will take center stage. By not declaring values and setting expectations about low-grade harassment and other behaviors that cause extra-legal harms, employees may think twice about whether what they experienced or observed was serious enough to be of interest to the employer. Given the many pre-existing barriers to reporting discussed at the outset of this Article, the result is likely to be a workplace culture in which doubts are resolved in favor of keeping quiet.

Still, even with its doctrinal limitations, law remains a powerful tool for addressing workplace harassment so long as enforcing agencies and employers take account of how legal-accountability choices shape workplace culture. Regulatory interventions can be crafted to require diffusion of policy information, interactive trainings, and disclosures that go beyond traditional check-the-box requirements.²⁴⁷ Even more important, government agencies that generate and enforce these measures can create templates and modules that enable compliance while being attentive to their effects on workplace culture. Through convenings, trainings, and publications, these agencies can also create opportunities for employers to assist each other in integrating their legal-accountability efforts with broader attention to how those efforts are experienced by employees. When properly understood and deployed, legal-accountability requirements thus hold great promise not only to punish the worst forms of misconduct but also to support a workplace culture that rejects harassment as outlier behavior and contrary to the organization’s shared values and commitments.

Harassment, Workplace Culture, and the Power and Limits of Law

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