United States: Workplace Harassment: EEOC Challenges Employers To Step-Up Their Approach

Last Updated: July 11 2016
Article by Kevin A. Fritz and Rashal Baz

Seyfarth Synopsis: New EEOC study calls for employers to "reboot" workplace harassment prevention efforts, outlines statistics, risks and administrative recommendations.

On June 20, 2016, two Commissioners of the U.S. Equal Employment Opportunity Commission ("EEOC") presented their findings of a fourteen month workplace harassment study in Washington, D.C.

The U.S. Supreme Court created a cause of action for workplace harassment under Title VII of the Civil Rights Act of 1964 in Meritor Savings Bank v. Vinson about thirty years ago.  Taken back by the amount of sexual harassment claims, Commissioners Chai R. Feldblum and Victoria A. Lipnic co-chaired a Select Task Force that spent more than a year studying harassment and creating prevention strategies.  The report notes that approximately 31% of ~90,000 charges received by EEOC in fiscal year 2015 included a workplace harassment allegation.

Employer Impact

It goes without saying that eliminating workplace harassment can lead to a happier and more productive work environment. The Select Task Force noted other indirect costs include increased turnover and reputational damage.  Additionally, beyond quality of work life, employers bear direct financial costs of harassment.  According to the study, between 2010 through 2015, harassment allegations cost employers $698.7 million in the pre-litigation EEOC process.  The pre-litigation financial liability is just the tip of the iceberg, when compared to the costs of litigating harassment allegations to completion.

All Charges Alleging Harassment FY 2010 – FY 2015

This table shows charge data for harassment allegations filed under all statutes, including sexual harassment charges. This table has been harmonized with other data on this site and only show charges filed with the EEOC.

  FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015
Receipts 27,356 27,270 26,777 26,756 26,820 27,893
Resolutions 29,687 31,990 30,501 27,537 25,791 28,642
Resolutions By Type
Settlements 2,853 3,127 2,906 2,656 2,351 2,627
9.6% 9.8% 9.5% 9.6% 9.1% 9.2%
Withdrawals w/Benefits 1,652 1,648 1,652 1,725 1,667 1,860
5.6% 5.2% 5.4% 6.3% 6.5% 6.5%
Administrative Closures 5,607 5,844 5,132 4,777 4,877 5,258
18.9% 18.3% 16.8% 17.3% 18.9% 18.4%
No Reasonable Cause 17,316 19,696 19,331 17,144 15,977 17,866
58.3% 61.6% 63.4% 62.3% 61.9% 62.4%
Reasonable Cause 2,259 1,675 1,480 1,235 919 1,031
7.6% 5.2% 4.9% 4.5% 3.6% 3.6%
Successful Conciliations 523 458 482 488 326 398
1.8% 1.4% 1.6% 1.8% 1.3% 1.4%
Unsuccessful Conciliations 1,736 1,217 998 747 593 633
5.8% 3.8% 3.3% 2.7% 2.3% 2.2%
Merit Resolutions 6,764 6,450 6,038 5,616 4,937 5,518
22.8% 20.2% 19.8% 20.4% 19.1% 19.3%
Monetary Benefits (Millions) $118.7 $118.5 $113.0 $129.1 $93.9 $125.5

The study also identified key risk factors that tend to give rise to workplace harassment claims: (1) homogenous workforces, (2) workplaces where some workers do not conform to workplace norms, (3) cultural and language differences in the workplace, (4) coarsened social disclosure outside the workplace, (5) workforces with many young workers, (6) workplaces with "high value" employees, (7) workplaces with significant power disparities, (8) workplaces that rely on customer service or client satisfaction, (9) workplaces where work is monotonous, (10) isolated workspaces, (11) workplace cultures that tolerate or encourage alcohol consumption, and (12) decentralized workplaces.  Savvy employers would be wise to try and eliminate or mitigate such risks where practicable. While the existence of one risk is not indicative of harassment, it may create a susceptible environment for harassment when coupled with other risks.

Takeaways

The proposed solutions from the EEOC study include a revamping of workplace culture through leadership and accountability, beginning with a top-down approach. The study urges employers to assess their workplaces for the risk factors associated with harassment, conduct intra-office surveys, hold mid-level managers and supervisors accountable for preventing and responding to grievances and actively promote diversity.

Employers should be wary of "zero tolerance" anti-harassment policies that are used as a one-size fits all model. Instead, any discipline that might result from such policy violations should be proportionate to the offense.  Zero tolerance policies may contribute to under-reporting of harassment, "particularly where they do not want a colleague or co-worker to lose their job over relatively minor harassing behavior – they simply want the harassment to stop."  The study suggests that avoiding zero tolerance policies will encourage employees to report workplace incidents, thus allowing management the opportunity to  tackle and proactively sculpt future anti-harassment training.

As we have previously published, employers should also consider the rising harassment claims stemming from social media platforms and might want to consider including a social media policy that ties into their anti-harassment policies.  This is not without its own pitfalls, though, as the National Labor Relations Board has released guidelines on drafting and updating social media policies, but the case law in that space is far from settled.

Lastly, the report highlights the importance of compliance training and the components to make such training successful. Training should shift from a legal compliance focused approach to a preventative-driven teaching that is supported at the highest levels and routinely evaluated.  In particular, the report highlights workplace civility training and the less-common "bystander intervention" training.  Workplace civility training focuses on positive interactions and respect in the office that transcends Title VII protected classes; while bystander intervention training empowers the individual to speak up when they witness harassment.  The study suggests an interactive approach to training may be more effective.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Kevin A. Fritz
Rashal Baz
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