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Rebooting Anti-Discrimination Efforts

Rather than focusing primarily on avoiding legal liability, the Equal Employment Opportunity Commission is calling on employers to create a culture of civility and respect that discourages workplace harassment in the first place.

Monday, July 25, 2016
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Thirty years after the U.S. Supreme Court ruled that workplace harassment is a form of unlawful discrimination prohibited under Title VII of the Civil Rights Act of 1964, a new report from the Equal Employment Opportunity Commission suggests not enough is being done to prevent it.

The report is the culmination of an exhaustive 14-month research project conducted by a 16-member select task force on the study of harassment in the workplace, consisting of representatives of academia from various social science disciplines, legal practitioners on both the plaintiff and defense side, employers and employee advocacy groups and organized labor. EEOC Chair Jenny Yang convened the task force after noticing 30 percent of the 90,000 charges filed with the EEOC in 2015 contained some allegation of harassment.

Adding to the concern was the finding that three-fourths of individuals who experience workplace harassment never complain, either informally or formally through an employer's reporting system, according to EEOC spokesperson Justine Lisser. Thus, the real prevalence of workplace harassment remains unknown.

While employers have diligently implemented anti-harassment training, the task force determined it has not had the desired effect and that it was time for a "reboot" of workplace harassment prevention and compliance initiatives. Rather than focusing primarily on avoiding legal liability, the EEOC is calling on employers to create a culture of civility and respect that discourages harassment in the first place.

"Workplace harassment remains a persistent problem and there is much more that employers can do," says Yang. "Preventing harassment from occurring in the first place is far preferable to remedying its consequences."

With that goal in mind, the report lays out the following five recommendations geared toward employers:

1)     It Starts at the Top: At all levels and across all positions, employers should communicate and model a consistent commitment to fostering an organizational culture in which harassment is not tolerated. Mid-level managers and front-line supervisors should be held accountable for preventing and/or responding to workplace harassment.

2)     Policies and Procedures: Employers should adopt and maintain a comprehensive anti-harassment policy, communicate it frequently to employees, and periodically test their reporting system to determine how well it is working.

3)     Anti-Harassment Compliance Training: On a "dynamic and repeated basis," employers should offer compliance training and dedicate "sufficient resources" to train middle-management and first-line supervisors on how to respond to harassment, preferably before it reaches a "legally-actionable level."

4)     Workplace Civility and Bystander Intervention Training: Employers are encouraged to explore new types of training that focus on promoting respect and civility in the workplace, rather than merely on eliminating offensive behavior. Bystander intervention training, in particular, has the potential to be "a game changer in the workplace," according to EEOC Commissioner Chai Feldblum, because it "creates a sense of collective responsibility on the part of workers and empowers them to be engaged bystanders in preventing harassment."

5)     It's On Us: The EEOC is seeking to assist employers with the "audacious goal" of launching an "It's On Us" campaign, according to Feldblum. Similar to the campaign that encourages bystanders to prevent sexual assault on campuses, it would encourage every person to become an engaged bystander in preventing workplace harassment.

It's all part of a holistic, proactive approach to reducing harassment in the workplace, according to Lisser.

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"By empowering employees and bystanders, such as co-workers and managers, to recognize behaviors that may not yet reach a legal definition of harassment, but have the potential to do so, improper behavior can be stopped before it reaches a more serious level," she says.

Not everyone agrees fully with the report's findings and recommendations. Gerald Maatman, a partner at Seyfarth Shaw in Chicago, believes the EEOC is "trying to push the legal envelope" by "criticizing training that passes the legal test in the courthouse" and "trying to stake out and expand the law in a new area." Consequently, he says HR should "not let their guard down" when it comes to workplace harassment.

"If it's on the radar of the EEOC, it ought to be on [their] radar," says Maatman. "The EEOC is going to be looking at these sorts of situations a little differently post this report, so it's important to realize the EEOC is looking over everyone's shoulders and you need to treat responding to harassment as one of the most important things that can be done by the HR department."

Regardless of the EEOC's newly heightened scrutiny and activism, employers should be reviewing their anti-harassment policies, procedures and training initiatives periodically, according to J. Randall Coffey, a partner at Fisher Phillips' Kansas City office. He concedes that some parts of the new report might constitute overreach on the part of the EEOC -- particularly the recommendation that agency researchers be allowed to come to the employer's place of business and assess the climate and level of harassment both before and after implementation of new training initiatives. Overall, however, Coffey feels the report is a "pretty positive document" that gives helpful guidance toward creating an environment that's less hospitable to harassment.  

"On the whole, it's a good compendium that provides a roadmap to employers that are concerned about their workplace environment," says Coffey. "The checklists provide a good starting point that allows a company to sit down and strategically think about where they want to go and to what extent what they are already doing is consistent with the best practices that the EEOC has set forth."

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