Recently, the Equal Employment Opportunity Commission (“EEOC”) issued the results of a study of workplace harassment. The agency convened a task force to conduct this study in January 2015. The task force issued a report in June 2016. Task Force Report. It concluded that since the Supreme Court recognized that Title VII of the Civil Rights Act prohibits sexual harassment as a form of employment discrimination 30 years ago, “we have come a far way since that day, but sadly and too often still have far to go.” The report addresses not only sexual harassment, but also workplace harassment claims based on any one or more of race, disability, color, age, national origin, ethnicity, or religion.
Workplace Harassment Poses a Very Real and Costly Business Risk
The task force’s study examined the current scope of unlawful harassment in American workforces. It noted that about one-third of the nearly 90,000 discrimination charges filed with the EEOC in fiscal year 2015 included workplace harassment allegations. Those filing harassment charges represent the tip of the iceberg, because “[r]oughly three of four individuals who experienced harassment never even talked to a supervisor, manager, or union representative about the harassing conduct.” The report identifies the following reasons for the underreporting of unlawful harassment claims: fear of disbelief of claims, fear of inaction on complaints, blame, ostracism, or retaliation. Workers, instead, develop their own work-arounds, such as avoiding the harasser, denying or downplaying the seriousness of the situation, ignoring, forgetting, or enduring the behavior. It finds the filing of a discrimination charge or pursuit of formal action through an employer’s complaint procedure to be “the least common response to harassment.”
The task force emphasizes the strong business case for workplace harassment prevention efforts. In fiscal year 2015 alone, the EEOC recovered $164.5 million for employees that alleged unlawful harassment claims. That sum excludes the sums that plaintiffs’ lawyers extracted from employers in either settlements or judgments in cases alleging those types of claims. In addition, workplace harassment poses business risks in the form of lower productivity, higher turnover, and reputational harm.
EEOC Proposes a Three-Part Strategy to Manage Unlawful Harassment Risks
The EEOC’s task force identifies a three part strategy to oppose unlawful workplace harassment:
- Top management must make a commitment to a diverse, inclusive, and respectful workplace and it must also hold all employees accountable to fostering such a workplace.
- Policies, reporting procedures, investigations, and corrective actions involve essential aspects of employers’ efforts to prevent harassment.
- Harassment prevention training undertaken in conjunction with the first and second parts of this strategy plays an essential role in an employer’s anti-harassment efforts.
Risk Factors Provide a Roadmap by Which to Implement the Prevention Strategy
The EEOC’s task force states its intention to help employers to avoid workplace harassment based on legally protected characteristics. To that end, its report identifies “risk factors” that may give employers a “roadmap” for their proactive preventative measures. The task force cautions that the presence of one or more risk factors identifies “fertile ground for harassment to occur.” It further suggests that employers “may wish to pay extra attention in these situations.” These risk factors include:
- Homogenous workforces: For instance, the only female or one of a handful of females working in an otherwise all male workforce may face a greater likelihood of experiencing sexual harassment than females working in a workforce evenly divided by gender.
- Workplaces in which some workers ignore workplace norms: For example, a worker with an obvious disability may experience harassment or ridicule by co-workers that perceive him as “different” or a worker who speaks politely and courteously in a workplace where her co-workers routinely express themselves with crude language and sexual banter.
- Cultural and language differences in the workplace: For instance, workplaces that employ both English speaking and non-English speaking workers of the same race where non-English speaking employees do not know their rights and whom other employees may exploit.
- Coarsened social discourse outside the workplace: For example, after the 9/11 terrorists attacks, workplace harassment based on religion and national origin increased.
- Workforces with many young workers: For instance, young workers in their first or second job may lack knowledge of laws and workplace norms, causing them to harass other workers because of their immaturity and lack of empathy for the persons that they harass. Young workers that others harass may lack the self-confidence to resist unwelcome overtures or to challenge conduct that makes them uncomfortable.
- Workplaces with “high value” employees: In some workplaces, certain workers receive more favorable treatment from employers because of their perceived high value, such as, a “rainmaking” principal in a professional services workplace.
- Workplaces with significant power disparities: For instance, in some workplaces, executives share the same facilities as administrative support staff. In others, plant managers perform their duties in the same factory as assembly workers. High status workers may believe that rank has privilege, and the low status of other workers may make them feel vulnerable and fear retaliation.
- Workplaces reliant on customer service or client satisfaction: For example, a tipped worker may feel compelled to tolerate harassing conduct rather than suffer the financial loss of a good tip. Similarly, a sales representative paid by commissions may endure harassment without complaining to make a sale. Management may know about a customer’s harassing behavior, but avoid intervening to avoid a loss of revenue.
- Workplaces with monotonous or low intensity tasks: Where routine job duties predominate, workers may have time on their hands and engage in harassing or bullying behavior to escape their boredom.
- Isolated workplaces: For example, where workers do their jobs alone with few opportunities to interact with others, such as janitors working the night shift, housekeepers cleaning hotel rooms, and agricultural workers in fields, their isolation makes them vulnerable to sexual harassment and assault.
- Workplace cultures that tolerate or encourage alcohol consumption: The reduction of social inhibitions and impairment of judgment that accompany alcohol consumption also increase the risk of harassment in workplaces that tolerate alcohol consumption during and around work hours.
- Decentralized workplaces: Workplaces, such as retail stores, chain restaurants, or distribution centers, that have corporate offices far removed physically from front-line employees or first-line supervisors enable some managers to be unaccountable for their conduct and allow them to ignore workplace rules without any penalty. Others may either lack any awareness of how to address workplace harassment issues or refuse to involve corporate headquarters staff in local affairs.
Effective Harassment Prevention Requires Compliance Training for All Employees.
The EEOC’s task force emphasizes that compliance training sets the employer’s expectations for acceptable and unacceptable behavior in its workplace. It ought not only to define unlawful harassment, but also to address conduct that, if left unchecked, could morph into unlawful harassment. For instance, the law prohibits severe and pervasive conduct that creates a sexually hostile work environment. Training should address the individual unacceptable behaviors whose cumulative effect ultimately creates a sexually hostile work environment. In addition, it should explain the consequences for such unacceptable behaviors, including corrective action proportionate to the conduct’s severity.
The task force further stresses the need for employers to present training relevant to the specific realities of different workplaces. It rejects “one-size-fits-all” training. Effective compliance training should use examples and scenarios that realistically portray situations likely to occur in specific worksites, organizations, and industries. The task force views “qualified, live, and interactive trainers” as the preferred means by which to deliver compliance training.
The task force also urges employers to tell employees the sorts of conduct excluded from unlawful harassment and, thus, acceptable in the workplace. For instance, supervisors that direct employees to obey the employer’s work rules and to meet its production standards in a non-discriminatory manner do not harass those employees by doing so. Similarly, a supervisor that makes “occasional and innocuous compliments–‘I like your jacket'” has merely expressed common courtesy to an employee, rather than unlawfully harassing her.
According to the task force, compliance training should further advise employees of their rights and responsibilities if they experience conduct that the employer has prohibited as unacceptable in the workplace. The training should explain the “(hopefully) multiple avenues offered by the employer to report unwelcome conduct based on a protected characteristic, regardless of whether the individual describes the conduct as ‘harassment.'” It, furthermore, should tell an employee that witnesses harassment how to report it to the employer.
Finally, effective compliance training should educate employees as to how the employer’s complaint process works. This explanation should explain how the employer investigates complaints and the measures that it takes to limit disclosures about its investigation to persons who need to know to do their job duties. The task force describes effective training as also stressing that the employer takes harassment complaints seriously, investigates them promptly, and protects employees that complain from retaliation.
The task force describes “managers and supervisors” as “the heart of an employer’s prevention system.” It stresses that the compliance training provided to them must give them easy to understand and realistic methods for dealing with any harassment that they see, an employee reports to them, or about which they receive information. Their training, moreover, should include practical suggestions on how to respond to different levels and types of offensive behavior and clear instructions as to how to report harassing conduct up the chain of command.
Task Force Urges Employers to Use Optional By-Stander Training and Civility Training to Transform Their Workplace Cultures
Finally, the task force encourages employers to do more than the law requires in their training to stem inappropriate behavior before it becomes unlawful harassment. It reasons that training that addresses only unlawful conduct may allow employees that behave inappropriately to feel secure in their inappropriate conduct, because it lacks the severity and pervasiveness to make their behavior unlawful. The task force candidly acknowledges that the anti-harassment training done over the past 30 years has not worked as a prevention tool. It has emphasized the avoidance of legal liability without achieving a transformation of workplace behaviors. To transform the workplace behaviors that produce unlawful harassment, the task force recommends the expansion of training in two forms: by-stander intervention training and workplace civility training.
The task force notes that many colleges and high schools have adopted by-stander intervention training to combat sexual violence on their campuses. Such training has the aim of changing social norms to empower students to intervene with peers to prevent assaults from occurring. In the workplace, by-stander intervention training would teach co-workers:
- to recognize problematic behaviors,
- to have a sense of collective responsibility to stop such behaviors,
- to develop skills to enable by-standers to intervene, and
- to give them the resources necessary to support their intervention.
The task force concedes that non-discrimination laws do not impose “a general civility code for the American workplace.” It, however, sees promise in training efforts that employers have undertaken to reduce bullying and workplace conflicts. The task force views them as examples worthy of imitation as a means by which to change unacceptable workplace behaviors. Such training promotes respect and civility in the workplace. The task force stresses that incivility often paves the way for workplace harassment. It further reasons that a climate of “general derision and disrespect” creates an environment in which harassing conduct flourishes. The task force considers training that promotes civility and respect in a workplace to be a means of preventing unacceptable conduct from snowballing into unlawful behavior. It further sees virtue in such training, because it emphasizes positive actions, namely what employees and managers should do, rather than the negative conduct that they must avoid.
In sum, the EEOC’s task force has compiled the data to show that unlawful harassment poses serious legal liability and business risks. The task force’s report identifies twelve risk factors that give employers insights into where to look for their greatest unaddressed workplace harassment issues. Finally, the report describes best practices that employers can implement both to prevent workplace harassment and to manage their liability risks. The task force’s report provides an important resource for all employers.