As companies look for effective ways to counter what has become a massive wave of sexual harassment allegations, a new employment training program has gained momentum with management: bystander intervention training. Its basic philosophy, frequently invoked in crime prevention contexts to increase accountability, and more recently on college campuses, is: "if you see something, say something." 

While the concept of encouraging employees to report harassment is not new, bystander training formally achieves additional goals that may positively shift workplace culture:

  1. provides employees with strategies for intervening in/responding to observed workplace misconduct
  2. allows employees to practice in simulated scenarios
  3. reinforces to employees that, if they don't feel comfortable stepping into active situations, they can "intervene" by reporting misbehaviors through different channels

The most persuasive case for bystander training is that, based on recent headlines, existing training programs might not be working, and employers should try innovative approaches. 

Additionally, bystander training can serve as a powerful deterrent. Potential harassers -- even those in high-level posts, the "superstar harassers" -- will know observing "bystanders" are watching.

Finally, bystander training helps create a culture of shared responsibility and purpose, in addition to boosting workplace morale

Nevertheless, this training raises several questions.

1. How do companies incentivize people to report misconduct?

Should they offer money for reporting substantiated misconduct -- essentially "snitches get riches"? For many reasons, most employers would shudder at this type of "bounty" program -- envisioning a world where employees strive to discover reportable conduct.

2. Should businesses punish employees that fail to report misconduct? 

For instance, following the firing of "Today" show host Matt Lauer, NBC has reportedly adopted workplace policies requiring employees to report inappropriate sexual conduct.

Again, this approach might give some employers pause. Despite companies' best efforts to highlight and enforce anti-retaliation policies, many employees (particularly non-managers) may still avoid reporting misconduct. Punishing them without reliable data that doing so will counter harassment has serious repercussions. To avoid discipline, will people stop eating lunch together? Stop attending holiday parties? Stop collaborating?

3. Will this lead to an uptick in retaliation claims?

More holistically, employers may fear that deputizing employees to file workplace complaints will broaden the rise of "retaliation plaintiffs" -- those employees who, if later terminated for legitimate reasons, could assert their dismissal was in retaliation for filing a "bystander" complaint.

Given the pros and cons, how should employers decide whether to conduct bystander training? 

Certainly, there is a strong case for incorporating some form of it into existing training programs. There is no downside to equipping employees with intervention tips to address harassment.

Similarly, it is hard to deny deputizing employee "bystanders" will help deter future misconduct. 

Lastly, while valid, I also would not overly worry about spikes in "bad faith" complaints or increased retaliation exposure. Granted, there is a risk bystander training will trigger additional complaints, some of which may not have a just cause. Yet, that may be outweighed by the immeasurable benefit of rooting out systemic harassment. 

Indeed, even without bystander training, there is always the risk employees will file bad-faith complaints -- either to settle vendettas or insulate themselves from legitimate discipline. Although rare, when caught, these employees can and should be disciplined, even terminated. But that is no reason enough for employers to forego bystander training.

So how should employers incentivize bystander reporting? Like everything else -- with great thought and nuance. 

I do not believe in offering employees financial rewards based solely on reporting of misconduct. This type of "bounty" system can do great damage. However, it would seem appropriate that employees' performance evaluations, promotions, raises and bonuses reflect their role in workplace investigations. 

That said, it would be problematic to have a system that punishes all employees for not intervening to stop or report harassment. However, companies should consider disciplining managers who observe harassment and don't act (albeit with proper advance written notice). This, on balance, will help companies err on the side of making managers more vigilant.
 

This article does not constitute legal advice. The views and opinions expressed in this article are the author's own and do not reflect the official policy or position of any other agency, organization, employer, company, or individual.

Published on: Jan 12, 2018