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

77 Pages Posted:

Date Written: December 23, 2020

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 “lowgrade
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.

Keywords: discrimination, harassment, employment, employment discrimination, labor, gender, sexuality, public dispute resolution, private dispute resolution

Suggested Citation

Goldberg, Suzanne B., Harassment, Workplace Culture, and the Power and Limits of Law (December 23, 2020). American University Law Review, Vol. 70, No. 419, 2020, Available at SSRN: https://ssrn.com/abstract=

Suzanne B. Goldberg (Contact Author)

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-0411 (Phone)

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