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Preventing Unlawful Harassment in the Workplace: The EEOC’s Call for a “Reboot”

Did you know that almost 1/3 of the approximately 90,000 charges filed with the EEOC in fiscal year 2015 included an allegation of unlawful “harassment” in the workplace? Moreover, according to the EEOC’s latest research, 3 out of 4 persons who experience “harassment” at work never report it to anyone either internally (e.g., HR or a supervisor) or externally (e.g., EEOC charge). Simply stated, workplace harassment continues to be a significant problem.

Mindful of this problem, the EEOC convened a diverse and experienced Task Force to investigate, and to offer analysis and solutions. In June 2016, the EEOC Task Force published a lengthy, but helpful, report with the stated goal of “reducing the level of harassment in our workplaces to the lowest level possible.” They urged a “reboot” of our collective efforts towards this goal.

There is much to learn from this report. This article will focus on a few key takeaways for Virginia employers.
1. Is There a Compelling Business Case for Harassment Prevention?

There is no question that legal liability and related costs are significant factors impacting a company’s decision to emphasize its commitment to being an equal employment opportunity (EEO) employer. The Task Force opined, however, that these direct costs are “just the tip of the iceberg.” Their research demonstrated that unchecked harassment impacts all workers and often results in decreased productivity, increased turnover, and reputational harm. These additional “costs” also adversely impact a company’s bottom line.

2. What is the culture of your workplace?

Prevention efforts will fail unless there is proactive leadership and commitment by the company’s top executives. To this end, what is the level of discourse in your facility? Are all employees treated with civility and respect? Is profanity or crude conduct condoned? Is management held accountable for their own conduct as well as conduct of those persons they supervise? The Task Force report evaluates these questions. At a minimum, companies must hold their employees accountable to comply with their stated EEO policies and commitment. To be successful in minimizing improper harassment, a company must also ensure that its culture is not one that serves as a breeding ground for unacceptable conduct.

3. What year was your harassment policy last reviewed, and by whom?

 In my experience, companies typically dust off their employee handbooks every few years, and then update them quickly so they can check this task off their “to do” list. When is the last time you updated your EEO, discrimination and harassment policy and complaint procedure? Who did the review? In the Task Force Report, the EEOC included a checklist of items that should be included in a harassment policy. While there is nothing “new” in this checklist, I still regularly see policies that are not compliant and/or are not well written. I have drafted a sample EEO policy and complaint procedure. If you would like to see it, please let me know and I would be happy to send you a copy.

4. How are you educating/training management and your employees?

Perhaps the most surprising conclusion of the EEOC Task Force is that corporate harassment training over the last 30 years has been largely ineffective. There are a number of reasons for this conclusion. Nevertheless, the Task Force still emphasizes that “training is an essential component of an anti-harassment effort.” The Task Force also has much to say as to the type of training provided. Moreover, SHRM recently posted an article by a management employment lawyer (and Task Force member) in which he articulated 17 tips for an employer’s training initiative. I attach a link to his article here. While the quote below states the obvious, the Task Force includes the following as one of its key recommendations:

Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information — even before such harassment reaches a legally-actionable level. (Task Force Report, p. 63)

As discussed above, however, such training must also be part of a larger commitment that includes the dynamics of company culture, leadership and accountability. Finally, while some of us still prefer reading handbooks in hard copy form, there is a new generation of workers who consume information electronically (or not at all). Accordingly, companies should also strongly consider making their policies available online and/or accessible from a mobile device.

Conclusion

I recently attended an employment law seminar in which Victoria Lipnic, a current Republican member of the EEOC and co-author of the Task Force Report, spoke passionately as to the significance of this report. I, too, am persuaded that companies should participate in the “reboot” of their harassment prevention efforts. I highly recommend that organizations devote the necessary time and resources to reassess their commitment to minimize harassment. Please let me know if we can help you in any way.

Todd Leeson regularly defends employment claims in Virginia courts and before agencies including the EEOC, National Labor Relations Board (NLRB), DOL and OSHA (whistleblower and retaliation claims). His experience includes the defense of companies as to alleged violations of Title VII, ADA, ADEA, FLSA, FMLA and the NLRA.

Additional Resources

These articles are provided for general informational purposes only and are marketing publications of Gentry Locke. They do not constitute legal advice or a legal opinion on any specific facts or circumstances. You are urged to consult your own lawyer concerning your situation and specific legal questions you may have.