The EEOC issued a multi-pronged call to action in the Final Report of its Select Task Force on the Study of Harassment in the Workplace on June 20, 2016. The Task Force acknowledged that in the thirty years since the landmark case, Meritor Savings Bank v Vinson (holding that workplace harassment is an actionable form of discrimination under Title VII of the Civil Rights Act) “we have come a far way…but sadly and too often still have far to go”. In thirty years, workplace harassment persists, and it continues, too often, to go unreported. The EEOC therefore convened a Task Force in January 2015 and set out to answer, among other questions, “[I]s there something we’ve been missing?”

So, who was on this Task Force, what exactly did it do and what did it find out? If workplace harassment remains a problem, why did the Task Force need to meet for 18 months, hold many meetings and issue a 120-page report to tell us that? Presumably many of us could have come up with the same conclusions. To be fair, the focus of the report was not merely to see what if any progress has occurred, and what if any problems remain, but rather on prevention. In Commissioners’ Feldblum and Lipnic’s own words:

As commissioners of an enforcement agency, we could have taken a cynical approach. We could have assumed that some people will always engage in harassment and that we cannot expect to control how people behave in increasingly diverse workplaces. That is especially so in an environment where every manner of rude, crude, or offensive material can be accessed and shared with others with a few strokes on a phone. We could have suggested that the Commission simply continue to do what it has done well for decades – investigate and settle charges, bring litigation, provide legal guidance, hear complaints from federal employees, and provide outreach and education.

We set cynicism to the side. We want to reboot workplace harassment prevention efforts.

-Feldblum, Chai, and Victoria Lipnic. Select Task Force on the Study of Harassment in the Workplace Report. Rep. EEOC, 20 June 2016. Web.

We know the Task Force ultimately convened to find out what more could – and should—be done to prevent workplace harassment. Its 16 members consisted of representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defendants’ sides, employers and employee advocacy groups and organized labor, from all parts of the country.

Wait a minute. If harassment continues to go unreported so often, doesn’t that suggest that the issue is not as big a priority to employees as we thought? If so, do we need to be so concerned about improved response or prevention methods? The EEOC answers that question as well in Part II, Section D of its report, arguing “There is a Compelling Business Case for Stopping and Preventing Harassment”.

What is the business case? Workplace harassment, like so many phenomena, triggers direct and indirect costs. The direct costs are as follows:

  • 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, 42 resolved claims, and a recovery of over $39 million on behalf of employees

These are clearly not small amounts, but they are not the only consequences of workplace harassment for employers.

The EEOC cites “a host of indirect costs that, while often invisible, can tower over the direct costs.” What would those be? According to the EEOC those hidden costs include, without limitation, decreased productivity, increased turnover, and reputational damage. To those who might think reputational damage is not so significant, consider that an employer with a bad reputation will often have trouble attracting and retaining quality talent, which in turn will impact productivity and ultimately, the bottom line.

Now that we understand that workplace harassment persists, that underreporting continues, and that there is in fact a compelling business reason to do something, what exactly do we do? That question really is the main focus of the EEOC’s report. The EEOC essentially advocates a holistic approach, starting 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).

Many have seized on one particular (and unfortunately misinterpreted) finding, namely that training in its present form does not seem to have prevented harassment. Does that mean that training is not necessary? According to the EEOC, no – training must change and new and different approaches to training must be explored.

What does this mean, that training should change? Change to what? The EEOC’s findings were that much of the training done over the last 30 years focused primarily if not solely on avoiding legal liability. Instead, the EEOC recommends that training be tailored to the specific needs and circumstances of each employer, and not be a one-size-fits-all approach. Training should take into account the invaluable role that first-line supervisors and middle managers can play in preventing and stopping harassment – when they are trained correctly. Finally, training should be part of a “holistic culture of non-harassment that starts at the top”, rather than something that is done in a vacuum without consideration of the specific workforce and workplace.

It’s all fine and well to say that “New and different approaches to training must be explored”, but what does that mean? Thankfully, Commissioners Feldblum and Lipnic provide some specific ideas that “may show promise for harassment training”. Specifically, they mention “bystander intervention training”, which 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”, and “workplace civility training” that focuses on promoting respect and civility in the workplace generally, rather than eliminating offensive behavior based on protected characteristics protected under anti-discrimination laws. These options that Feldblum and Lipnic seem to feel have promise are decidedly proactive in contrast to the majority of current efforts, which appear more reactive.

Employers may also be pleased that the EEOC has plainly acknowledged tensions between anti-discrimination laws and the National Labor Relations Board’s recent interpretations of the NLRA, 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.”

Employers can actually benefit from reading the full report, which includes very informative, helpful information in a readable format and can be found here.

For more information, contact Ahmed Younies at (800) 708-3655, Extension 703 or [email protected].