Monday, November 27, 2017

Cognitive Biases and Sexual Harassment Training

With all the news of sexual harassment recently, there has been much discuss about sexual harassment training.  Even Congress is considering sexual harassment training for its members and staff.

However, sexual harassment training will do no good unless it also includes training in cognitive biases.  Three kinds of people are in sexual harassment training: 1) those who don't need it because they already know how to act like human beings, 2) those who realize what they are doing and don't care, and 3) those who think sexual harassment is wrong but don't recognize that they are sexual harassers because of cognitive biases.  Sexual harassment training will do no good for those in group 2.  What members of this group need to curtail their misconduct is the threat of punishment and public embarrassment.   Sexual harassment training, however, can help those in group 3, but only if they are shown that cognitive biases are preventing them from recognizing that they are sexual harassers.

Take an example from behavioral legal ethics concerning conflicts of interest.  David Boies represented Harvey Weinstein in his defense against allegations of sexual harassment.  He was also an attorney for the New York Times, which was reporting on Harvey Weinstein.  Concerning this conflict, Mr. Boies stated, "If evidence could be uncovered to convince The Times the charges should not be published, I did not believe, and do not believe, that that would be adverse to The Times’s interests."  Mr. Boies is a prominent, successful attorney.  He probably intended to be an ethical attorney, and he was probably shocked when allegations of a conflict of interest were asserted against him.  However, any objective person would see his representation of two parties with adverse interests as a conflict of interest.  Why did such an intelligent man fail to see this egregious ethical breach?  Cognitive biases.  Mr. Boies suffered from the overconfidence effect, and he had  bias blind-spot concerning his own conduct.  He thought he could avoid an ethical violation under these facts, even if lesser attorneys couldn't.

The same thing applies to sexual harassment training.  Many harassers know the pitfalls of sexual harassment, but, because of cognitive biases, such as the overconfidence effect and bias blind-spot, they wrongly think they can avoid them.  For example, some college professors believe they can date a student without any problems.  However, as we all know from countless news stories, when a conflict arises in the relationship, sexual harassment claims usually result.

In sum, it is not enough that sexual harassment training show what sexual harassment is.  It must also show how good people can sexually harass because they are unaware of their cognitive biases.

(Scott Fruehwald)

 

http://lawprofessors.typepad.com/legal_skills/2017/11/cognitive-biases-and-sexual-harassment-training.html

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