CHAPTER 36

• Jurisdiction: United States

CHAPTER 36

The #MeToo Movement, Symbolic Structures, and the Limits of the Law

Lauren B. Edelman¹

In December 2017, Time Magazine gave its person of the year award to the "The Silence Breakers," commemorating a broad societal awakening about the pervasiveness of sexual harassment in the workplace. The #MeToo movement took off, and numerous prominent men were fired or resigned in the wake of allegations of sexual harassment.

The response of many organizations to the #MeToo movement was to create or update antiharassment policies, complaint procedures, and training programs. This response might, at first blush, seem like organizations were taking the necessary steps to eliminate workplace harassment. However, as I argue in Working Law,² these policies and procedures do more to shield companies from legal liability than they do to protect employees from sexual harassment. I refer to these types of policies, procedures, and training programs as symbolic structures because they symbolize compliance with law. Symbolic structures, however, do not guarantee substantive results.

The Decoupling of Symbolic Structures and Substantive Results

Antiharassment policies and complaint procedures, which proliferated in the latter part of the twentieth century, are now commonplace. Yet, as the #MeToo movement made clear, sex-based harassment in the workplace is common. Social science research suggests that 60-75 percent of working women have experienced sexual harassment at work.³ Harassment based on race, ethnicity, and disability is also common and women of color are disproportionately likely to experience harassment.⁴ An important question, then, is why harassment remains so prevalent given that the majority of companies in the United States have implemented antiharassment policies and complaint procedures for those who believe that they have been subjected to harassment. As I discuss below, research suggests that antiharassment policies in organizations are often ineffective, employees are reluctant to complain about sexual harassment, and antiharassment training may in fact be counterproductive.

Sexual Harassment Policies Exist to Protect Organizations More Than to Protect Employees

My research—based on surveys of organizations, interviews with human resource (HR) professionals, and content analyses of both HR journals and federal court opinions—shows that antiharassment policies and complaint procedures can comfortably coexist with organizational cultures in which women are regularly subjected to demeaning commentary, unwanted physical contact, and even threats of or actual sexual assaults.⁵ The coexistence of antiharassment policies and harassment can be explained by a concept in organizational theory called "decoupling," meaning that policies exist to demonstrate attention to legal ideals but that they are ignored at lower levels and leadership fails to demonstrate strong support for the policies.⁶ High-value employees who often enjoy substantial power within an organization often feel immune from these policies and believe, often with good reason, that they are too valuable to be sanctioned.

Antiharassment policies, then, serve to symbolize the organization's commitment to legal ideals. In some organizations, moreover, leaders take harassment very seriously and genuinely work hard to develop or sustain a workplace culture in which all employees feel included and valued. Yet in many other organizations, leaders fail to set a strong example or to make clear that the antiharassment rules are to be taken seriously. In those organizations, rules banning harassment often exist alongside a culture in which harassment is common and where leaders look the other way to avoid losing power-players who they view as critical to the organization's profits or reputation. Such decoupling of policies and practices is especially common when organizations are decentralized and the day-to-day governance often relies on mid-level supervisors who may pay little attention to instructions from headquarters on how to behave. Where policies and practices are decoupled, policies serve as symbols of attention to law but fail to provide any substantive protection for employees. Substance is actually a continuum: all antiharassment policies are symbols of legality but those policies range from being both symbolic and substantive to being merely symbolic.⁷

Complaint Procedures Rarely Lead to Redress

Complaint procedures, moreover, are often of little value because people who experience harassment or other forms of discrimination are extremely reluctant to file complaints. Indeed, only about one in four women subjected to sex-based harassment report it using an internal complaint procedure and far fewer file an official complaint with the Equal Employment Opportunity Commission (EEOC).⁸

Why do so many employees choose not to report harassment? Common reasons include fear of retaliation or a belief that complaints will not be taken seriously. Often victims find the process of filing a formal complaint and enduring an investigation and hearing distasteful; they simply want the harassing behavior to stop.⁹ Some employees report that filing a complaint would cast themselves as victims while they prefer to think of themselves as survivors.¹⁰

Women in particular are aware that success and promotion in organizations depends on being a team player, which often means putting up with unwanted sexual commentary, touching, or worse rather than complaining about it.¹¹

When employees do use internal complaint procedures, they are often disappointed. Human Resource (HR) professionals frequently discourage women who inquire about filing a complaint from framing their complaints as sexual harassment, instead suggesting that the behavior is not sufficiently severe or pervasive to constitute compliance or that it is simply an instance of poor management or of interpersonal conflict.¹² Potential complainants, then, are easily discouraged from pursuing their complaints. Employees fail to achieve redress for their complaints and administrators may be denied important information about the abuses that are occurring.

Complaint handlers, moreover, rarely fit the ideal of a neutral decision-maker. Complaint handlers, who are often HR professionals, depend upon management for their paychecks, bonuses, and prospects for advancement. Complaint handlers who frequently challenge management are likely to be viewed skeptically by those in control of their future employment prospects. Thus, complaint handlers are often reluctant to label behavior as harassment. Anna-Maria Marshall, for example, found that complaint handlers frequently told those who sought their help that their experiences were not sufficiently severe or pervasive to be considered sexual harassment.¹³

Even when complaint handlers take complaints seriously, moreover, they are unlikely to characterize the events that led to the complaint as illegal sexual harassment. In a study of dispute resolution in organizations that I conducted with Howard Erlanger and John Lande, we found that complaint handlers rarely viewed complaints as legal issues, instead reframing complaints of discrimination or harassment as instances of poor management or as interpersonal difficulties. Complaint handlers, therefore, would resolve complaints by moving a complainant to a different manager or by requiring counseling. Even in egregious cases, complaint handlers were more likely to require a manager to apologize than they were to label the behavior as a violation of law or to impose serious sanctions.¹⁴ Concerns about defamation lawsuits by the accused or about losing high-value employees often take precedence over efforts to end harassment.¹⁵ The extreme reluctance to complain among victims of sexual harassment coupled with the fact that complaint handlers are part of the management structure together make complaint procedures more symbolic than substantive in many organizations.

Antiharassment Training Often Backfires

Antiharassment training is another organizational practice that symbolizes legal compliance, and one that has gained great traction among organizations. Sexual harassment training is now a multi-billion-dollar industry.¹⁶ Indeed, in the wake of the #MeToo movement, bipartisan legislation was passed by both the House and Senate making sexual harassment training mandatory for all lawmakers and staffers. Many companies also instituted sexual harassment training. Yet the evidence that such training is effective is scant and is often based on attitudes rather than behavior. For example, an experimental study conducted by Kimberly A. Lonsway, Liliana M. Cortina, and Vicky J. Magley showed that students who underwent sexual harassment training were less likely to believe in classic myths about sexual harassment such as that women fabricate or invite sexual misconduct.¹⁷ And a study by Shereen Bingham and Lisa Scherer showed that students randomly assigned to a sexual harassment training program were more knowledgeable about law prohibiting harassment and university policy than students who did not go through the training program.¹⁸

The Bingham and Scherer study, however, showed that the sexual...