EEOC report takes deep look at workplace harassment

Samuel Hernandez, The Daily Record Newswire

In early July, Gretchen Carlson, a former "Fox & Friends" co-host, filed a lawsuit against then-Fox News Chairman and CEO Roger Ailes alleging she had been fired after rebuffing his sexual advances. Later that month, Ailes resigned from Fox News and the Fox Business Network, which he had helped build over two decades. This highly visible ordeal highlights the serious nature of sexual harassment claims, which can bring significant consequences, even to heads of multibillion-dollar companies.

Perhaps less visible publicly was the Equal Employment Opportunity Commission's recent report on the Study of Harassment in the Workplace. The report, which may set the groundwork for how the EEOC looks at harassment in the workplace in the future, looked at what is known about harassment, the factors that may increase its occurrence, and different steps that can help prevent it.

Since 2010, the EEOC has received a gradual but steady increase in the number of charges alleging harassment from 27,356 in 2010 to 27,893 in 2015. That is an average of 76 charges filed every day. Taken individually, harassment charges on the basis of race and sex make up the bulk of charges followed by national origin and religion. Similarly, the monetary benefits secured by the agency against employers have also increased from $118.7 million to $125.5 million during the same time period. Those figures neither take into account the recovery amounts of complaints filed in state court, nor complaints settled privately through mechanisms such as mediation. The report notes that the cost to employers also includes an increase in turnover and decreases in morale and productivity and all affect the bottom line.

While no employer is immune from claims of harassment, the report identifies a number of workplace environmental risk factors that may increase the prevalence of harassment. For instance, the report notes that lack of diversity, workplaces with significant power disparities between different groups of employees, work that is monotonous or low-intensity, and decentralized work locations may add to the prevalence of harassment. Accordingly, workplaces with a higher number of risk factors may be prone to higher instances of harassment. Notably, the report found that most instances of harassment go unreported, observing that anywhere from 87 percent to 94 percent of individuals do not file a formal complaint. The reasons are varied, including fears of a claim not being believed, inaction by the employer, retaliation, marginalization by co-workers, or career damage.

The report went on to discuss several factors found able to help prevent harassment. Perhaps the most important factor is commitment by company leadership to a workplace that is not only intolerant of harassment but also inclusive, diverse and respectful. Commitment plays a significant part in what employees will consider as acceptable, because it helps lay the foundation for a company's culture. Another piece of the puzzle is making sure that systems are in place at all levels to hold employees accountable and ensure follow-through when employees fail to adhere to company expectations. Part of those systems includes training at all levels, effective policies, safe reporting, and reward and punishment mechanisms. That may seem like old news; however, the report highlights that instead of the old approach traditionally prevention, legal compliance and decreasing liability employers must implement a holistic approach to prevent harassment in order to have a dynamic effect.

For instance, employers should consider an employee's use of social media. Though social media use may predominantly be done outside of work, it can have both positive and negative effects in the workplace. Accordingly, employers should consider an employee's use of social media when drafting harassment policies.

Moreover, the report encourages employers to consider training on workplace civility and bystander intervention as part of a holistic harassment prevention program. Workplace civility training has long been used by some employers to establish and promote expectations of respect and civility in the workplace in general. Bystander intervention training, on the other hand, has gained traction in the college setting with a focus on shared responsibility to stop harassment.

The report also encourages the EEOC to partner with other agencies like the National Labor Relations Board and the U.S. Labor Department in order to collaborate on additional research or possible solutions to problems such as keeping investigations as confidential as possible, and the NLRB's broadening view as to what can be characterized as protected concerted activity.

The report further recommends that the EEOC seek terms in settlements or consolation agreements with employers that adopt compliance programs following the report's guidance and ask employers to agree that researchers work with employers before and after implementation of compliance programs in order to study the impact of training.

The report's guidance will no doubt have implications for employers large and small. Employers should take steps to become familiar with the guidance and consider implementing its recommendations accordingly.

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Samuel Hernandez is an attorney with Barran Liebman LLP. He provides compliance advice to employers and represents management in employment law litigation. Contact him at 503-276-2175 or shernandez@barran.com.

Published: Thu, Sep 01, 2016