Monday, December 10, 2007

Brief Thoughts on Organizational Studies and Sexual Harassment Law

This is background info from a presentation I gave on a paper I'm writing, the interesting, novel bits being micro-organizational perspectives for preventing/correcting sexual harassment in the workplace, and reforming compliance standards thusly.

Meritor Savings Bank v. Vinson

•Court’s citation of EEOC Guidelines:
–If the employer has an expressed policy against sexual harassment and has implemented a procedure specifically designed to resolve sexual harassment claims, and if the victim does not take advantage of that procedure, the employer should be shielded from liability absent actual knowledge of the sexually hostile environment. …In all other cases, the employer will be liable if it has actual knowledge of the harassment or if, considering all the facts of the case, the victim in question had no reasonably available avenue for making his or her complaint known to appropriate management officials.

•No Automatic Liability for Employers:
–“[Employers are [not] always automatically liable for sexual harassment by their supervisors. For the same reason, absence of notice to an employer does not necessarily insulate that employer from liability.”

•Agency Issues:
–“[T]he mere existence of a grievance procedure and a policy against discrimination [does not] insulate the [employer] from liability. While those facts are plainly relevant…they are not necessarily dispositive.”

•Implications for Organizational response: general non-discrimination policies that do not address sexual harassment in particular do not alert employees to their employer’s interest in correcting that form of discrimination, nor do grievance procedures that require the employee to first complain to the alleged perpetrator, without alternate avenue of notification or redress. Thus, what type of structures and procedures do organizations implement to address sexual harassment that will 1) insulate from liability and 2) help the employee resolve the problem?

The Ellerth/Faragher Affirmative Defense

•In cases in which the harassed employee suffers no “adverse, tangible employment action” (TEA), can the employee recover against the employer , under the theory of vicarious liability, without showing the employer is negligent or otherwise at fault for the supervisor’s actions?

•Court: Title VII was “designed to encourage the creation of anti-harassment policies and effective grievance mechanisms,” to further the goals of deterring harassing conduct. In the absence of a tangible employment action, the employer may raise the Ellerth/Faragher affirmative defense that the employer 1) “exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and 2) “that the plaintiff employee unreasonably failed to take advantage of any preventive corrective opportunities provided by the employer or to avoid harm otherwise.”

•Implications for Organizational response: the Court appears to encourage prophylactic, but possibly merely symbolic organizational practices on the part of employers to address the problem of sexual harassment in the workplace. When is the endogenous, preventative regulation within and among organizations sufficient to satisfy the exogenous legal standards created by the courts to redress harms already suffered?

The Endogeneity of Law: Symbol v. Substance

•Institutional analyses of organizations from the cultural/cognitive perspective has produced a great deal of literature on the diffusion of organizational structures, practices, and outputs.
•Most pertinent to our inquiry are those studies that examine the effects of the law—coercive isomorphism, exogenous regulation—on the diffusion of human-resources policies and practices in response to state requirements (Edelman, 1992; Dobbin, Sutton, Meyer and Scott, 1993, Kelly and Dobbin, 1998).

•Sociolegal New Institutionalists have shown that laws are only partial codes, and so actors inside and outside the organizations must socially construct the meaning of vague and uncertain legal mandates.

•Organizational interpretations of, responses to, and promulgations of legal rules create a feedback loop into the law—and this is where the law is endogenous: organizations alter their behaviors and structures to respond to the law’s vague mandates, and so the law is but a partial explanation for the diffusion of policies and practices. Organizations respond to exogenous rules, but also generate, endogenously, their own practices and norms that are then mimetically copied throughout the industry, producing norms as much as they replicate legal standards.

Symbolic, Prophylactic Organizational Responses

•Back to Ellerth/Faragher: Justice Kennedy noted that “Title VII is designed to encourage the creation of anti-harassment policies and effective grievance mechanisms”—the recursion in this statement is key—the central purpose of a law is to promote practices designed by professionals (often to prevent/serve as future defense against litigation) to conform to the law. That is, the law itself doesn’t mandate a discrimination-free working environment, only that there be structures to promote the reduction or redress of discrimination—whether or not these structures are effective.

•Symbolic practices (sensitivity training) and grievance procedures (formal changes to the organization’s structure and operations) do not guarantee substantive, effective remedies for sexual harassment. The Ellerth/Faragher affirmative defense was the Court’s attempt to clarify employer liability in the absence of a TEA—to avoid the extreme of imposing strict liability under principles of agency; but stopping short of permitting the employer to hide behind sham or merely ineffective anti-harassment policies and procedures

•Back to Organizational Studies: Studies by Edelman, Bisom-Rapp, et al. demonstrate that agencies and courts may view procedures themselves as evidence that discrimination was not present. Courts may be using employers’ symbolic responses as ready-made yardsticks for compliance. Again, the problem of recursion: the law is both exogenous and endogenous, and at once exerting coercive force on organizations while accepting the organizations’ definition of compliance.

The Problem With the Affirmative Defense: How Organizations Say “Yes, But No”

•My argument is a pretty basic one: the Ellerth/Faragher affirmative defense is ineffective at what it’s trying to do: namely, clarify when an employer is liable in absence of a TEA. What is “reasonable, preventive care”? When it is unreasonable for a harassed employee to fail to utilize these preventive/corrective opportunities? What about the liability of employers for the harassing conduct of their employees who are not aided by the agency relation?
•Organizational studies may help us determine what is “reasonable, preventive care,” as well as explain why employees fail to utilize formal grievance procedures, and why such procedures don’t work. Yet the Courts fail to examine efficacy—they ignore the results in the myopic focus on process.

•Sexual harassment law should be reformed in light of new findings in social science research about how best to address problems in the workplace. Moreover, social science studies assessing organizational practices do not take sufficiently into account the possibility that more robust legal standards may be more efficacious in reforming entrenched organizational structures, particularly in confluence with managerial accountability programs. The law is both exogenous in its effect and endogenous in its incorporation into business practices; a two-tiered approach to sexual harassment law is necessary to both prevent and correct sexual harassment in the workplace.

•The question remains how to make the laws more effective? Coercive isomorphism may be weak, as organizations adopt structures to give the appearance of legitimacy and compliance without substantive result—but if we redefined, with the help of the social science studies, what constitutes compliance, what is most effective at remedying harassment, and redrafted the legal standards to make them more robust—might then organizations adopt more effective grievance procedures?