An Ounce of Prevention is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law

This article challenges a widely shared conviction that has had a tremendous impact on employer practices and, most recently, on employment discrimination jurisprudence. More specifically, the piece interrogates the belief that employee education can prevent, or at least greatly curb, invidious employment discrimination prohibited by Title VII of the Civil Rights Act and other civil rights statutes. This premise, broadly held and rarely questioned, has spawned a multi-billion dollar sexual harassment and diversity training industry staffed by consultants, attorneys, and human resource professionals, who offer programs aimed at litigation prevention. Yet, there is absolutely no empirical support for the premise behind the instruction - that it fosters employee tolerance and greatly alters workplace culture. Even more troubling is the Supreme Court's recent embrace of anti-discrimination training as a doctrinal and jurisprudential component of Title VII's substantive law. Landmark opinions in 1998 and 1999 make clear the Court's vision of Title VII as expressly encouraging personnel policy creation and employee educational efforts. In short, the Court has elevated anti-discrimination training to the level of an affirmative defense in sexual harassment cases and a mechanism for limiting damages in discrimination cases where punitive damages are sought. Focusing on what little is known of the effects on employees of sexual harassment and diversity training, the article questions the wisdom of a reflexive and undiscerning view of these employer efforts by the Court and the legal profession as a whole. Unlike the legal profession, social scientists are disturbed by the glaring lack of empirical research on the effects of anti-discrimination training and urge caution in the endorsement of such programs. The dearth of program outcome research is dangerous for two reasons. First, preventative programs, even when adopted with the best of intentions, can have negative effects. Second, providing training gives the impression that "something is being done," lulling managers and others into a false sense of security. An ineffective educational program, however, may not reduce the incidence of workplace bias in the least. Beyond these important concerns, however, is the larger question of the significance of the developing jurisprudence of education and prevention in employment discrimination law. There is a disturbing trend in civil rights law toward acceptance of legal compliance in form rather than substance. An uncritical embrace of anti-discrimination training runs the risk of further facilitating that trend. At stake is the ultimate shape and composition of the post-affirmative action workplace. If equality is to be more than cosmetic - indeed, if employment discrimination law's preventative purpose is to be fulfilled - courts must look beyond symbols to determine whether the environment in which a plaintiff worked was actually discriminatory. The symbolic gestures of employers in providing anti-discrimination training, no matter how well intentioned, are poor substitutes for searching inquiry into the particulars of a given workplace.