Gary Rhoades, the AAUP’s new General Secretary, has written a thoughtful article in today’s Inside Higher Ed about mandatory sexual-harassment training. I’d encourage you to read the whole thing, but one portion was particularly relevant to my legal experience:
This leads to my second observation about the issue of institutions requiring sexual harassment training for faculty. What purpose does it serve? As Professor McPherson says of the requirement, “I have never heard the university advance a reasonable and convincing explanation.” In fact, there is no evidence that such one-time training is effective in reducing the activity in questions. Here, I would agree with Professor McPherson’s questioning of the rigor and effectiveness of such training. Thus, he notes that some of his colleagues log in to the online training, wait for a period of time, and then give random answers to questions. He also notes the regular distribution of materials to employees providing information regarding the rules and regulations surrounding sexual harassment, rendering in his view the online training unnecessary.
Whatever the nature of the online training, and the behavior of the participants, there is ample reason to question the impact of a single experience on behavior. Perhaps there is even greater reason to questions the behavioral impact of such an intervention when it is “virtual.” However, such formal training may nevertheless serve an important function for the organization, by providing legal and external “cover” for the college or university in question.
I have defended companies from large-scale harassment suits as a corporate litigator, and I have challenged overbroad sexual-harassment definitions as a free-speech attorney. This experience has taught me a few truths: Sexual harassment is very real and should be punished when it occurs, yet the concept of sexual harassment (indeed, “harassment” in general) has been so ideologically abused that it is often used not to protect women but to silence dissent.
We need sexual-harassment training, but not the “training” that is all too common–the airy nonsense that at best is tuned out as irrelevant and at worst actually taken as true by enforcers of campus orthodoxy. After years and years of this “training,” we still have colleges defining harassment as “generalized sexist remarks,” and we still have colleges prohibiting undefined “negative impacts” or “offensiveness.” All of this casts a pall on campus expression without actually informing anyone what actual harassment is.
Rhoades is right that training programs can provide “cover” during litigation. But I would go farther and say that training based on actual legal standards could not only prevent women (and men) from suffering through real harassment, it could also dispel the myths that cause other women and men to suffer through censorship and the shame of false accusations.