EEOC Urges Employers To Revamp Harassment Prevention Practices

EEOC Urges Employers To Revamp Harassment Prevention Practices

On June 20, 2016, the Co-Chairs of the EEOC’s Select Task Force on the Study of Harassment in the Workplace issued a 130-page report detailing its findings after 14 months of study of workplace harassment. To the dismay of many employers, the Select Task Force found that workplace harassment remains a persistent problem, and most employers’ harassment prevention training has been ineffective in preventing it.  The Select Task Force urged employers to “reboot” their workplace harassment prevention efforts.

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The Select Task Force, which was convened in 2015 and was comprised of 16 members, including management and plaintiffs’ attorneys, representatives of employee and employer advocacy groups, labor representatives, and academics (sociologists, psychologists, and experts in organizational behavior).  From April 2015 through June 2016, the Select Task Force held a series of meetings, and received testimony from more than 30 witnesses.  They made several key findings:

  1. Workplace Harassment Remains A Persistent Problem.

In evaluating the prevalence of harassment in the workplace, the Task Force did not limit itself to conduct that is illegal under harassment laws.  Instead, the Task Force looked at unwelcome or offensive conduct that (a) is based on protected status (i.e., race, sex, sexual orientation, age, etc.) and (b) is detrimental to an employee’s work performance, professional advancement, and/or mental health.  This included offensive jokes, slurs, epithets or name calling, undue attention, physical assaults or threats, unwelcome touching or contact, intimidation, ridicule or mockery, insults or put-downs, constant or unwelcome questions about an individual’s identity and offensive objects or pictures.

The Task Force noted that for 2015, harassment complaints made up nearly one third of the 90,000 complaints filed with the EEOC.  Of those harassment complaints, 45% alleged sexual harassment, 34% alleged racial harassment, 19% alleged disability harassment, 15% alleged age harassment, 13% alleged national origin harassment and 5% alleged religious harassment. Academic articles, surveys and questionnaires reviewed by the Task Force reported that anywhere between 25% and 85% of women report having experienced sexual harassment in the workplace.  Very few national studies have assessed the prevalence of harassment on other bases (i.e., disability, sexual orientation, gender identity, and age).  The Task Force recommended that the EEOC and other federal agencies work with the private sector to conduct a national poll and conduct other studies to measure the prevalence of workplace harassment based on all protected categories.

  1. Workplace Harassment Often Goes Unreported.

Based on its review of studies that examined employee responses to sex-based harassment, the Select Task Force found that the least common response of either men or women to harassment is to report the harassment internally or file an external complaint.  The more common responses were to avoid the harasser, deny or downplay the gravity of the situation, or attempt to ignore, forget or endure the behavior.  The greatest impediment to reporting harassment was the aggrieved employee’s fear of retaliation.

  1. Preventing Harassment Makes Strong Business Sense.

The Select Task Force also noted that charges of harassment come at a steep cost for employers.  The 5,518 harassment charges resolved in the charging party’s favor by the EEOC in 2015 resulted in $125.5 million in awarded benefits to the successful party.  A study by an employment liability insurance provider found that 19% of employment dispute claims resulted in defense and settlement costs averaging $125,000 per claim.  Litigation of harassment claims can be even more expensive.  Even when claims are resolved in the employers favor, the employer can still suffer decreased productivity, increased turnover, and reputational damage.

  1. True Change Requires A Commitment By A Company’s Leadership.

The Select Task force found that workplace culture has the greatest impact on the prevalence of harassment in the workplace.  It also found that creating a harassment-free culture requires two things: (1) a commitment, from leadership at the very top of the organization, to a diverse, inclusive, and respectful workplace in which harassment is simply not acceptable; and (2) systems in place, across all levels and positions of an organization, that hold employees accountable for this expectation.

  1. Current Harassment Prevention Training Methods Are Inadequate, And Must Change.

The Select Task Force confirmed what many employers know to be true: harassment training, standing alone, is most likely not an effective tool in preventing harassment.  Rather, training must be part of a holistic effort that includes leadership buy-in and accountability.  The Select Task Force reached several conclusions about the effectiveness of training:

  • Effective training can increase knowledge about what conduct the employer considers unacceptable in the workplace, and may help men understand that certain forms of sexual conduct are unwelcome and offensive to women.
  • Some types of sensitivity training may actually be counterproductive.
  • Individuals who attend effective training may be more likely to file an internal complaint.

The Task Force also offered the following recommendations for employers:

  • Offer harassment training on a regular and company-wide manner, on a dynamic and repeated basis to all employees.
  • 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.

The Select Task Force report is a very thoughtful, interesting read.  It provides examples, suggestions and resources that can be helpful to all employers.  You can find the report in its entirety here.

Contributor:  Vida L. Thomas, Attorney at Law | Weintraub Tobin