In April 2018, I spent three days in Austin, Texas, in the company of more than 2,500 people, most of them women, who are deeply concerned about the problem of workplace sexual harassment. The venue was the city’s convention center, and when a man named Derek Irvine took the vast stage and said that there had been “an uprising in the world of those who refuse to be silent,” the crowd roared its support. He introduced a panel of speakers who have been intimately involved with the #MeToo movement: Tarana Burke, the creator of the original campaign and hashtag; Ronan Farrow, who broke the Harvey Weinstein story in The New Yorker; and Ashley Judd, one of the actors who says she was harassed by Weinstein. Adam Grant, the author of many highly regarded books on management theory and a professor at the Wharton School, interviewed them, and their remarks were often interrupted by loud, admiring applause.
The session ended to a standing ovation, which was not surprising, given the moral authority of the speakers. What was surprising, however, was the makeup of the audience: This was a gathering not of activists, but of professionals who work in human resources. The event was a convention called Workhuman, put on by a software company.
For 30 years, ever since Anita Hill testified at Clarence Thomas’s Supreme Court confirmation hearings, HR has been almost universally accepted as the mechanism by which employers attempt to prevent, police, and investigate sexual harassment. Even the Equal Employment Opportunity Commission directs Americans to their HR offices if they experience harassment. That the #MeToo movement kept turning up so many shocking stories at so many respected places of employment seemed to me to reflect a massive failure of human resources to do the job we have expected it to perform. Even Harvey Weinstein’s company, after all, had an HR department.
I went to Texas to get a sense of how the people who work in the field were feeling about this exposure of their profession’s shortcomings. Each morning at the convention, I fished around in my suitcase for something that looked businessy and then clip-clopped across the street to the convention center, joining a stream of similarly attired women. (HR is a profession of women; 75 percent of the field’s workers are female—as, of course, are the overwhelming majority of employees who experience sexual harassment.) Our numbers grew in strength until we became a river of Banana Republic blazers and Ann Taylor wrap dresses and J.Crew slingbacks, a crowd of professional women, ages 25 to 60, all in an aggressively upbeat mood, many in chunky jewelry.
As I got to know them, I found the Workhuman attendees to be extremely personable and helpful, eager to wave me over to lunch tables and coffee groups. But they evinced an oddly disinterested attitude toward #MeToo. On the one hand, they were inspired by the movement. On the other hand, they did not exhibit any particular sense of responsibility for the kinds of failures that have allowed harassment to flourish. When Farrow said that #MeToo was about the “elaborate systems in place that could be utilized by the most powerful, the wealthiest, men” and Grant replied that the “reporting systems in companies tend not to work very well,” I thought the crowd might take offense, but no one seemed insulted.
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The problem of sexual harassment wasn’t merely one of “bad apples,” Grant continued, but also of “bad barrels.” I looked around the hall, thinking that in this analogy the harassing men were the apples, and the systems that protect them—such as HR—were the bad barrels. But no one else appeared to take his remark that way. The audience members applauded graciously when Farrow paid them a high compliment: He was “so happy to be speaking to this room,” to people who took preventing sexual harassment as their “sacred charge.”
No one called for reforming or replacing HR. Just the opposite: The answer to the failures of HR, it seemed, was more HR.
The experience left me with a question: If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR? I returned to these questions many times over the course of the following year, interviewing workplace experts, lawyers, management consultants, and workers in the field.
Finally, I realized I had it all wrong. The simple and unpalatable truth is that HR isn’t bad at dealing with sexual harassment. HR is actually very good at it.
In the old days, there was personnel: payroll, hiring, and—should things go terribly awry—pink slips. It was an office where the clatter of a typewriter signaled that volumes of paperwork were being shifted from inbox to outbox, and where employees could be just as bloodlessly reshuffled from “in” to “out.” It was women’s work, and in the popular imagination it was the terrain of the spinster: humorless, a stickler.
Human resources performs all of these old functions, along with a host of new ones. Employees often imagine that the “resources” on offer are the benefits that flow to them from that department, but in the term’s 19th-century origins, it is the workers themselves who are the resources, one more asset—along with equipment, factories, and capital—at the company’s disposal. Most HR reps today would never dream of speaking about employees as a type of commodity (at least not to their face), although it can be hard to understand what, exactly, these reps are talking about, because the field is rich with jargon: onboarding, balanced scorecards, cultural integration, the 80/20 rule.
In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, HR can just as quickly become assassin as friend.
On The Office, Michael Scott once said of Toby, the Dunder Mifflin HR rep: “If I had a gun with two bullets, and I was in a room with Hitler, bin Laden, and Toby, I would shoot Toby twice.” Over the past year, every time a friend asked what I was working on and I mentioned the letters HR, there was a remarkably consistent response: a quiet groan and a brief, skyward look—not a two-bullet look, but not a one-bullet look, either.
Fairly or not, HR is seen as the division of the company that slows things down, generates endless memos, meddles in employees’ personal business, holds compulsory “trainings,” and ruins any fun and spirit-lifting thing employees come up with. A notorious Fast Company cover story, published in 2005, is called “Why We Hate HR.” Its author, Keith H. Hammonds, laid out a string of damning questions that have resonated with businesspeople ever since:
Why are annual performance appraisals so time-consuming—and so routinely useless? Why is HR so often a henchman for the chief financial officer, finding ever-more ingenious ways to cut benefits and hack at payroll? Why do its communications—when we can understand them at all—so often flout reality? Why are so many people processes duplicative and wasteful, creating a forest of paperwork for every minor transaction? And why does HR insist on sameness as a proxy for equity?
But the real reason many workers don’t love human resources is that while the department often presents itself as functioning like a union—the open door for worker complaints, the updates on valuable new benefits—it is not a union. In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, or should management decide to go in another direction, HR can just as quickly become assassin as friend. The last face you’ll see is Jane’s—your pal from HR, who hands out the discounted tickets to Knott’s Berry Farm and sends the blast emails about Chipotle Friday—and she’ll be dry-eyed while collecting your employee badge and invoking the executioner’s code: COBRA.
Jane’s not a bad person—she’s just carrying out orders from far up the ladder. And when it comes to sexual harassment, women understand that Jane reports to upper management, not some neutral body that stands in allegiance with right moral action. If employers judged HR departments by their ability to prevent sexual harassment, most would have gotten a failing grade long ago. What HR is actually responsible for—one of the central ways the department “adds value” to a company—is serving as the first line of defense against a sexual-harassment lawsuit. These two goals are clearly aligned, but if the past year has taught us anything, it’s that you can achieve the latter without doing much of anything at all about the former.
In October 2014, Ellen DeGeneres did something on her talk show that we can hardly imagine in today’s environment: She made an extended joke about sexual harassment. “Last week we had our mandatory sexual-harassment training seminar,” she told the audience. “We have it every year for all of the employees, and it combines frank discussions about the workplace behavior and … mind-numbing boredom.” The people in the audience laughed appreciatively—they knew exactly what she meant. Then she introduced a game: “Sexual-Harassment Training or Late-Night Movie?” And, with the eager participation of the audience, she read lines of dialogue and asked the crowd to guess their source.
Ellen’s joke depended on our common understanding that in the decades since Anita Hill’s testimony, HR has created a huge body of instructional films, computer training modules, seminar scripts, and written policies on sexual harassment. That a subject as urgent and—in its own, lurid way—bound with eros, fear, and guilt created an oeuvre known primarily for its stupefying dullness should have been a clue that the serious issue of harassment was being funneled through a bureaucracy whose aim was not (at least not purely) protecting women workers.
At solving the problem, HR is not great. At creating protocols of “compliance” to defend a company against lawsuits? By that criterion, it has been a smashing success.
Hill’s testimony riveted the nation. It occurred years before the forensically prurient Starr Report became part of breakfast-table discourse; before hard-core pornography became a subject of open conversation; before sex workers were interviewed, respectfully, on staid national news programs. It was unprecedented: a dignified and extremely well-educated woman testifying before a group of male senators about pubic hair on a Coke can, all while the camera whirred before her and the entire country looked on. It was, in other words, exactly the kind of sui generis event that should not have resonated on a deeply personal level with any woman, save perhaps some of Clarence Thomas’s law clerks. Yet it did resonate with women—millions of them. Their response was nonpartisan, unifying, nationwide, and—for many men—eye-opening. The concept, if not the linguistic formation, of “Me too” was born almost overnight. Hill’s composure in the face of withering and often humiliating male commentary (including, let us not forget, that of Joe Biden) was stirring. “I am not given to fantasy,” she said simply. “This is not something I would have come forward with if I were not absolutely sure.”
Hill’s testimony gave American women a way of understanding something that the Supreme Court had decided four and a half years earlier, in the famous Meritor Savings Bank v. Vinson case, which established that sexual harassment is a form of discrimination as defined by Title VII of the Civil Rights Act. A potent combination of factors was born: Women could sue for sexual harassment, and their employer could be on the line for big damages. That last fact caught the attention of American employers and is the true father of the system that Ellen and so many other Americans have mocked.
At solving the problem, HR is not great. At creating protocols of “compliance” to defend a company against lawsuits? By that criterion, it has been a smashing success. How do we know? Partly because employers are so devoted to it; the first thing many an executive will do when a company is under scrutiny for sexual harassment is heap praise on its crackerjack HR team, and describe the accused men as outliers.
Pam Teren, an employment lawyer in Los Angeles, graduated from law school and began working at a firm in 1990. “I thought I’d probably never have a sexual-harassment case,” she told me. The next year, Anita Hill testified, and these cases poured in. She told herself, “This is a five-year window. Because how simple is this? Don’t grab women. Don’t stare at their chests.” We both laughed—it really was pretty obvious. She figured that men would catch on quickly and the window would close. But she was wrong. Like thousands of lawyers across the country, she has been taking sexual-harassment cases ever since. Her entire career has been devoted to this work.
One aspect of the #MeToo movement that has puzzled observers is the nature of its inciting incident: the reports of Harvey Weinstein’s alleged sexual harassment. Why is it that such a singular bit of horror—with its luxury hotels, its glamorous locales, its involvement of famous actors, and its promises of Hollywood stardom—launched a movement that united women from all walks of life and all types of jobs?
The reality is that #MeToo was waiting to happen. Women’s anger and frustration had been a simmering pot, its lid jittering. Something was going to cause it to boil over soon enough. The anger was about harassment; the frustration was about the system that had been created to address it.
In the months before Weinstein’s crimes were revealed, in October 2017, three prominent American women spoke out against human-resources departments. In February, an Uber engineer named Susan Fowler wrote a 3,000-word blog post alleging sexual harassment at the company. She described her experiences with a male manager who propositioned her and wrote that she “expected that I would report him to HR, they would handle the situation appropriately, and then life would go on.” It didn’t. On April 6, Nancy Erika Smith, who represented Gretchen Carlson in her harassment suit against Fox News chief Roger Ailes, spoke at the annual Women in the World conference and told the audience a stark truth: “HR is not your friend. HR will not help you.” That same day, Anita Hill wrote in The Washington Post, “There are still companies that pay lip service to human-resources departments while quietly allowing women to be vilified when they come forward.” All of this set the table for what has happened in the wake of Weinstein.
In fact, the movement could have begun a full year earlier, in 2016, when a special task force from the EEOC released its findings on sexual harassment. The occasion was the anniversary of the Meritor case. The task force had been charged with determining how much progress the country had made since that historic decision. Its finding: very little. “Much of the training done over the last 30 years has not worked as a prevention tool,” the task force found. That’s an incredible statement—three decades of failure.
Making a show out of tossing harassers to the curb proved good for business during the early and middle phases of #MeToo. But social change that is dependent on a popular movement is destined to fade.
The EEOC report is a government white paper for the ages: sprawling, maddeningly unfocused, almost willfully opaque. But wade through it with pen in hand, and you realize it is also a startling document. It reveals that sexual harassment is “widespread” and “persistent,” and that 85 percent of workers who are harassed never report it. It found that employees are much more likely to come up with their own solution—such as avoiding the harasser, downplaying the harassment, or simply enduring it—than to seek help from HR. They are far more likely to ask a family member or co-worker for advice than to file a complaint, because they fear that they will face repercussions if they do.
Anti-harassment training, and the centrality of HR in resolving women’s problems, has been an ever-growing part of employees’ lives since 1998, when a pair of Supreme Court decisions, Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth, changed the way courts look at harassment claims. If a company uses a Faragher-Ellerth defense, it is asserting that despite clear policy and regular training, the employee who was harassed failed to make a report to HR and so the employer was unable to resolve the problem. This is why all of that training—the videos and online courses and worksheets—seems so useless: because it’s designed to serve as a defense against an employment lawsuit. The task force cited a study that found “no evidence that the training affected the frequency of sexual harassment experienced by the women in the workplace.” The task force also said that HR trainings and procedures are “too focused on protecting the employer from liability,” and not focused enough on ending the problem.
The findings are depressing. Yet in a PowerPoint presentation accompanying the report, the task force maintains a hopeful, at times even chipper, tone. “The good news,” it pronounces after delivering the dire facts, is that “we have some creative ideas.”
One of these ideas comes in a bold assertion: “An ‘It’s On Us’ campaign in the workplace could be a game changer.” Here the EEOC is referring to a campaign that was introduced during President Barack Obama’s administration to reduce sexual assault on college campuses. There’s no indication that the campaign did anything at all to reduce sexual assault, and after an exciting and widely publicized launch it has been largely forgotten. Other suggestions include bystander-intervention training and civility training—the latter of which even the EEOC admits hasn’t been “rigorously evaluated” as a tool for preventing harassment.
“Creative ideas”? A year before Weinstein, the agency ultimately responsible for fighting sexual harassment in America was grasping at straws.
When I was in Austin, I asked conference attendees why HR has accomplished so little. Over and over, they gave me a version of the same answer: They don’t have power. They can deliver the trainings and write the policies, they can take reports and conduct investigations, but unless the harasser is of relatively low status within the organization, they have little say in the outcome. Most of the time, if the man is truly important to the company, the case is quickly whisked out of HR’s hands, the investigation delivered to lawyers and the final decision rendered by executives. These executives are under no legal imperative to terminate an alleged offender or even to enforce a particular sanction, only to ensure that the woman who made the report is safe in the future.
Making a show out of tossing highly placed harassers to the curb proved good for business during the early and middle phases of #MeToo. But social change that is built on a popular movement is destined to fade when that movement becomes less fashionable. Already the country has begun to move on. The steady drumbeat of famous men being fired has slowed, and a backlash against what are perceived as unfair punishments has gathered strength. In April, Taffy Brodesser-Akner wrote a New York Times Magazine cover story about allegations of an extensive pattern of sexual harassment and discrimination at Sterling Jewelers, a chain of retailers that includes Kay, Jared, and Zales. Here was a major writer reporting on an important subject—it was the kind of piece that a year earlier would have gotten the attention of the country. But as the #MeToo movement wanes, outrage has turned to resigned acceptance.
Like everyone else who understands the problem, including the EEOC, the HR workers I met at the conference reported that there is only one way to eradicate harassment from a workplace: by creating a climate and culture that starts at the very top of the company and establishes that harassment is not tolerated and will be punished severely. Middle managers can’t change the culture of a company; only the most senior people can do that. And expecting an HR worker—with a car loan, a mortgage, college tuition around the corner—to risk her job in a fight against management on behalf of an employee she barely knows is unrealistic.
Throughout the course of writing this article, I encountered many alternatives to the traditional system of dealing with sexual harassment. I talked with one hugely successful high-stakes litigator in Los Angeles named Mark Baute. “I’m brutal in a courtroom,” he told me cheerfully, “and I’ve got the goods.” Baute has sometimes been asked to speak to executives at big companies. When he is introduced, none of the men in the audience takes much notice of him, because the subject is HR. But then, in his booming courtroom voice, he says, “I’m here so that this company doesn’t hire someone like me to come in and destroy your career.” The men put down their phones. He hammers them with every possible outcome of harassing a co-worker, and then he shames them: “Tell me something. If you’re such a stud, why do you only date women who depend on you for employment? Why can’t you walk outside of this building and find someone else to date?”
Baute’s approach is aggressive, unconventional, and apparently very effective. It struck me as exactly the kind of “creative idea” that the EEOC might have been looking for. But no one is talking about taking it mainstream. Instead, we can expect to see HR deploy new techniques aimed more at protecting companies than at protecting employees.
So-called love contracts are becoming popular, requiring employees who are dating to report to HR to sign paperwork affirming that they are willingly taking part in a consensual relationship. It is like a posting of the banns: a semipublic profession of intention, HR squirreling away one more signed document to indemnify the company from the human impulses of its workers. This could be understood as HR mission creep. Or it could be understood as another mile marker of the journey we are all on, as religion falls away and customs erode, and new norms of behavior are reverse-engineered from employment law. Title VII is the Bible, compliance training is the sermon, and the HR office is the confessional.
HR is no match for sexual harassment. It pits male sexual aggression against a system of paperwork and broken promises, and women don’t trust it. For 30 years, we’ve invested responsibility in HR, and it hasn’t worked out. We have to find a better way.