Will more legal remedies to address harassment at work build trust and opportunity?

Author and thought leader, Arthur Brooks, recently shared that “Self-expression is a driver of happiness; the more our work allows us to self-express, for example, the happier we tend to be.”

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But can we protect the freedom to be ourselves in our workplaces?

Citing the worst examples of harassment and discrimination, passionate lawmakers keep proposing legal remedies to workplace relationships that, ironically, end up alienating us from each other.

Building and maintaining relationships is a hard and messy process. Denying that reality risks leaving us with an absence of them.

Activists have been promoting an expansion of our anti-discrimination laws as a tool to free workplaces of harassment

The immediate policy goal is for all workers to feel psychologically safe. This is in service of an aspirational goal of broader inclusion toward personal and career growth. These set a high bar.

Can we expect to accomplish this through an expansion and more invasive provisions? We already have established anti-harassment laws and enforcement. It seems unlikely.

We must not focus on only the WHY. We must recognize and understand the HOW. Activists see these laws as tools for social change. But laws are inherently transactional. A law is contractual language. It defines and dictates terms for relationships. When one side believes that the contract has been breached, both parties must go through an adjudication process. Events and personal reports are broken down into detailed parts, examined, and a final determination based on the legal language is made. In this case, did harassment occur? Can the employer be held responsible? What is the remedy, penalty, or award?

While the intent is to free workplaces of conflict, it may instead purge them of interpersonal relationships to avoid unclear risks.

By lacing our decisions, activities, and behaviors with rigid rules, excessive workplace regulations create doubt and uncertainty. Laws, rules, and enforcement mechanisms transform what is relational into what is safe and transactional.

For managers and employers, every interaction and decision must be viewed through a lens of the risk of government intervention. It forces employers to treat their employees not as the individuals they are, but as the transactions that they represent.

Workplaces are, at their best, relational and vibrant, and at their worst, transactional, uninspiring, and cold.

But a relational workplace comes at a cost. Relationships are hard. They are hard because of people. People walk into a workplace bringing with them everything that makes them who they are before they walk through that door.  People are not machines to be tuned to some standard.

By proposing uniform laws, advocates seek to hold employers to one standard and dismiss the reality that context matters.

Some employees walk through ten-foot revolving doors into a spacious lobby, ride an elevator to the twelfth floor, exchange formal greetings with coworkers, and get comfortable in a cubicle or office. Others walk into a noisy, bustling scene, full of unpredictable exchanges that may spill out onto the sidewalk and brush with the street scene whatever that may be. In both contexts, the ideal is to build and enjoy trust, relationships and opportunity. To do that, employees and employers must have some confidence that they can bring with them who they are.

As long as activists and politicians promise more than what laws and government agencies can deliver, there will be disappointment. 

Today’s proposals intend to zero in on behaviors and interactions that are more sensitive than what most people recognize as aggressive, intentional harassment. Some try to devise formal definitions for any behavior that is unwelcome even if it was unintentional. Put in practice, these laws, with a rapidly growing presence in our regulatory infrastructure since the 1980s, tear at relationships, one at a time.

They filter relationships that are in conflict through what can be a long drawn out transactional, but emotionally charged process of investigation. It involves breaking down hard to distinguish or measure parts for closer examination and review. Implementation leans on a well (or not so well) choreographed formal procedure in companies, and then to government agencies. Yet those agencies, held to such high expectations, are already suffering from high rates of turnover and overload from an ambitious expansion of laws that demand more than what they are capable of delivering.

A clamor by activists for laws with teeth means that provisions are included that also build a pipeline to high-stakes courtrooms. Plaintiff attorneys posture among themselves as most capable of delivering desired outcomes.

Ideally, we resolve conflicts quickly, learn more about each other, and build trust.

“A conflict delayed is a conflict compounded.” This remark from Jordan Petersen caught my attention. It certainly applies here as anyone familiar with how these ideas work in practice knows.

Many of us who have been through tough relational conflicts can look back and see (and feel) that vividly. Because this process takes control out of the hands of the original two people in conflict, the potential for the conflict to grow is almost guaranteed. Once a grievance is introduced, a wider number of people are exposed to risk for their compliance to privacy or defamation violations as required by the expansive provisions.

A grievance takes on a life of its own. More pernicious is that it spreads fear of entanglement and encourages heavy self-regulation that strangles creativity, levity, and opportunity.

Laws like the current models proposed for anti-harassment expand regulatory mandates of what has been ineffective since legal efforts began in the 1980s. ¹ Yet evolving strategies to address dissatisfaction in context are not trusted. An overriding State process is thought to be the answer by activists seeking expediency and absolute resolution. Can we purge poor human judgment and behavior from workplaces uniformly across the state without regard for their unique environments or participants? Can we tighten state scrutiny beyond what most people would recognize as harassment and dig deeper into more complex individual interpretations of what is offensive? Or will we instead purge human connection and authenticity?

Can we be happy in increasingly tense, sterile, or spiritually void environments?

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Lawmakers failed to pass an expansion of Colorado’s Anti-Discrimination Act last session over broad concerns for overreaching and vague legal language that would lead to negative consequences.

A proposal is expected to be introduced again this session which began January 12, 2022.

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¹ Why Sexual Harassment Programs Backfire, Frank Dobbin, Harvard Business Review, May 1, 2020