When Sensitivity Training Is the Law
By Walter Olson
“Rule of Law”
Wall Street Journal
January 20, 1993

If the Senate were an ordinary workplace, by now the management probably would have asked senators and staff to attend a seminar on sexual harassment.  The men would be warned not to act like wolves and the women would be urged to speak out about insensitive treatment.  If this ever happens, it will be interesting to hear from Carol Moseley Braun, a new senator from Illinois.

    Sen. Braun, who owes her seat in part to voter anguish over the Anita Hill case, was expected to be a leading voice on sex harassment.  But then the Chicago Sun-Times quoted unnamed women on her staff as saying that her campaign manager and current date, Kgosie Matthews, had treated them harshly after they rebuffed his advances.

    To Sen. Braun, the anonymous charges recalled the excesses of McCarthyism.  "I'm old enough to remember the days when somebody could be accused of being a communist with nobody coming forward," she said.  "I'm old enough to remember what it did to people's lives."   (Actually, it doesn't take a very long memory to recall what happened to Clarence Thomas, whose accuser also sought anonymity at first.)

    One hopes a similar sense of balance will emerge in the "sensitivity training" sessions now sweeping the American workplace.  Usually couched as efforts to head off sexual harassment before it starts, these seminars have moved from academia, where they first caught on big, to the general corporate world and beyond.  The whole New York State Assembly got sensitized en masse a few weeks ago.

    Even when done semi-voluntarily, as a sign of good faith by companies wishing to improve their position in future lawsuits, these programs risk stirring up more tension than they resolve.  But in Connecticut -- a state whose compulsory-chapel tradition goes way back -- things are not even nominally voluntary anymore.  Under a law being hailed as a model elsewhere, employers with 50 or more employees are compelled to enroll their managers in sensitivity training on company time.

    Although some trainers are relatively detached and neutral in approach, others pursue an ideological mission.  A network of hot lines, crisis centers and advocacy groups, many with close ties to plaintiffs' lawyers, has emerged to advise persons troubled by manifestations of sex in the workplace.  Their underlying philosophy is exemplified by Sexual Harassment on the Job, a self-help book from Nolo Press.

    The aggrieved employee can take "a series of escalating steps", the volume notes.  For example, "If you were made uncomfortable because of jokes, pin-ups or cartoons posted at work, confiscate them -- or at least make copies".  If an "anti-woman joke makes the rounds of the office", try to look for a linkage to specific (compensable) harm, such as by finding among the chain of joke-repeaters a manager who recommends promotions.

    A table suited for copy-and-clip use explains with charming directness:

     "* Fairly serious harassment --...
     "* Personal injuries -- the more serious, the better....
     "* A solvent defendant."

    In an interview in the New York Times, a Connecticut rape-crisis-center official named Lorna Brown Flynn offers similar advice: Keep secret notes, surface with a witness when you stage a confrontation with the offender, demand your personnel files and bring a witness then too.  "If a company suggests in-house counseling to resolve the problem, forget it," Ms. Flynn says.  "Usually, that's intended to get you to drop the complaint."  Her group, like the state's 12 other rape-crisis centers, plans to offer employers training services under the new law.

    Christina Hoff Sommers, who has attended sensitivity sessions as a professor at Clark University, says most men and women in a workplace can usually agree on core behavior they view as unacceptable.  Some trainers, though, "take the most thin-skinned, chronically offended person in a group as the norm.  And that gives them a lot to do."  As previously accepted behavior gets redefined as insensitive, audience members tend to go along: "You really don't want to object,” she says.  “There are these enthusiastic facilitators.  Mainly you just sit there and take it...it's part of being polite."

    For all the talk of diversity, says Charles Sykes, author of A Nation of Victims, the result can be an "intolerance of diversity of points of view", in which challenges from the audience get dismissed as "backlash" (if from men) and "denial" (if from women).  Lynn Chu, a New Yorker who examined training proposals as a member of a federal grant panel, says that in some programs she reviewed, women who did not perceive themselves to be harassed were urged to "recognize their error" as victims of "internalized sexism....In my opinion, it can verge on indoctrination".

    Most businesses, of course, want a process that minimizes legal trouble and brings employees together, not one that rubs salt in the frictions that are inevitable when the sexes work together.  Big companies can (and have) set up training programs that avoid the obvious dangers.  Maybe that's why Connecticut’s main business association, which conducts training itself, signed off on the bill.  Groups that do training were the chief lobbyists for the bill, as its House sponsor artlessly noted when asked about the availability of seminars.  "As I stated earlier," Rep. Joseph Adamo said, "in most cases, it is the groups that are advocates for this particular legislation who do the training."

    Smaller employers tread a riskier path.  Not every 50-person firm can afford to bring in its outside lawyer for an afternoon every time a new manager gets hired.  Under the Connecticut law, incumbent managers can all be trained in a batch, but new managers have to get their dose within their first six months on the job.  A nice touch is that while managers trained since October 1991 are considered re-educated for good, those trained before that date are given no credit, reportedly on the theory that such training is of no use in the World After Anita Hill.

    Small employers are, of course, likely to look for low-cost training methods.  Trouble is, groups willing to offer low- or no-cost training tend to be those on a crusade.  And the kicker is that the state Human Rights Commission has broad authority to enforce the rules, meaning that at some point it could begin declaring who is qualified to train and how.

    Mandated benefits are enough of a strain.  If business isn't careful, it could wind up with mandated attitude adjustment.

* * *

Walter Olson is a senior fellow at the Manhattan Institute and author of The Excuse Factory.  Elizabeth Altham assisted in the research for this article.

Overlawyered.com (frequently updated links and commentary on the U.S. legal system) / resources on harassment law

More Olson writings on sexual harassment law / on employment law / on litigation


Books | Bio | Browse writings | Search | Email
Overlawyered.com | Walter Olson home page