Workplace harassment persists. That’s really not news. Our discussion last week of Gretchen Carlson’s lawsuit against Fox News CEO Roger Ailes, made that point clear. (Click here if you missed that post.) The EEOC, in its recently released study on workplace harassment, presented a startling piece of information: Training as a prevention tool does not seem to have made an impact. No, the EEOC is not telling you that you can stop providing anti-harassment training. But if training is not shown to have made a dent in workplace harassment, wouldn’t employers’ efforts be better spent elswhere? To that I would say, “Hold up there, you don’t have the whole story.” So now, of course, I will give you the rest of the story– you guessed it– after the jump…
To get the whole story, let’s start with Meritor Savings Bank v Vinson. This 1986 US Supreme Court case held that workplace harassment is a basis for a Title VII discrimination claim. Noting that 30 years later, harassment persists, and too often continues to go unreported, the EEOC in January 2015 convened a task force to see if there is “something we’ve been missing”. So the task force, comprised of representatives of academia from various social science disciplines, the plaintiffs’ and defendants’ attorneys, employers and employee advocacy groups and organized labor, and presided over by Commissioners Chai Feldblum and Victoria Lipnic, met over an 18-month period, and ultimately issued a 120-page report.
Now, if harassment continues to go unreported to a significant degree, wouldn’t that suggest that it’s not such a big problem? Maybe then it shouldn’t be such a concern to employers, then? Well, in Part II of its report, the Task Force says that “[T]here is a Compelling Business Case for Stopping and Preventing Harassment”. What, according to the Task Force, would be the business case? Simply put, employers incur both direct and indirect costs when harassment in their workplace goes unchecked.
Here are some of the direct costs: Nearly one in three EEOC charges filed in FY 2015, i.e. 27,893 of 89,385 charges, alleged some form of harassment, or a daily average of 76 charges. The EEOC resolved 28,642 charges alleging in FY 2015 of which 5518 were in favor of the charging party, and resulted in $125.5 million in benefits for employees. In 2010, through the EEOC’s pre-litigation enforcement process alone, employers paid out $698.7 million to employees alleging harassment. One estimate of settlement payments and judgments arising from actual litigation just from 2012 sets the number at over $356 million. The largest jury award in 2012 for sexual harassment was $168 million. EEOC-initiated harassment litigation in 2015 consisted of 33 filed claims, and 42 resolved claims, and a recovery of over $39 million on behalf of employees. These are clearly not small amounts.
According to the report, the indirect costs include, without limitation, decreased productivity, increased turnover, and reputational damage. Should reputational damage really be such a concern? Well, here’s a thought: for an employer with a bad reputation attracting and retaining quality talent, can be a challenge on a good day. If you have trouble attracting and retaining good talent, it’s only a matter of time before your company’s bottom line will suffer as a result.
Now, we get to ask the burning question: What’s an employer to do about workplace harassment, then? Is this the part where the EEOC said training doesn’t make a difference? No, that is an inaccurate interpretation. The EEOC said that training in its present form does not seem to be effective in preventing harassment. The EEOC made it clear that training should and must still be an essential component in harassment prevention programs, but that: a) it must change, and b) employers must explore new and different approaches to training. OK, great. Um, what does that mean?
The good news is that the report actually provides some specific suggestions that might prove helpful. Here are two:
- “Bystander intervention training” has been used to combat sexual assault on campuses, and would empower co-workers, giving them tools to intervene when they witness harassing behavior that “may show promise for harassment prevention”;
- “Workplace civility training” focuses on promoting respect and civility in the workplace generally, rather than eliminating offensive behavior based on protected characteristics protected under anti-discrimination laws.
You can already see one common thread: they are decidedly proactive in contrast to the majority of current efforts, which appear more reactive.
Now, as much focus as the media may have given it, the report does not only talk about training. Perhaps most important of all is the emphasis on a holistic approach. Employers need to focus on the entire organization, and on on how all its operations and all its policies and practices impact each other and either help prevent harassment or inadvertently exacerbate the problem. What might a holistic approach to workplace harassment prevention look like? According to the EEOC it should start with promoting a culture committed to preventing harassment. That commitment must start with the top echelons of management (leadership). Employers must then have systems in place that hold all employees accountable for complying with this company culture (accountability). In other words, training, should continue but should be one piece of the puzzle –and all the pieces of the puzzle should interlock.
Now, how about a really big-picture question: how do we reconcile the anti-discrimination laws and harassment prevention programs with the NLRB’s interpretations of the NLRA? Well, you may be pleased to hear that the EEOC plainly acknowledge these tensions between anti-discrimination laws and has recommended the following:
- The EEOC and the Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the National Labor Relations Act and federal EEO statutes with regard to the permissible confidentiality of the workplace investigations, and the permissible scope of policies regulating workplace social media usage.
- EEOC and the National Labor Relations Board should confer, consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and federal EEO statutes with regard to permissible content of workplace “civility codes.”
Let’s see if the NLRB heeds the EEOC’s call. Whatever you do, continue providing anti-harassment training.
OK, it’s time to get down off the soapbox– until next week!
Disclaimer: Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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