Last year, the U.S. Equal Employment Opportunity Commission ("EEOC") issued a major report on the subject of sexual and other unlawful harassment in the workplace. The EEOC's Report (which is available at this link) highlights the persistent nature of workplace harassment and suggests ways for employers to reboot their harassment prevention efforts.
Given all of the costs entailed by harassment claims, as well as the EEOC's prominent role in enforcing federal anti-discrimination laws, employers would be wise to review the Report carefully and consider how their policies and procedures for preventing and remedying workplace harassment may need to be modified.
Harassment: The Basics
Under the main federal employment discrimination statute, Title VII of the Civil Rights Act of 1964, unlawful workplace harassment takes two general forms.
First, quid pro quo harassment refers to a situation in which an employee's submission to sexual advances or similar behavior (i) is made, explicitly or implicitly, a term or condition of employment, or (ii) is used (or threatened to be used) as a basis for employment decisions affecting the employee. An example is a supervisor's hinting to an employee that she will get a promotion or raise if she agrees to date the supervisor. (By its nature, quid pro quo harassment, unlike hostile environment harassment, is virtually always sexual in character.)
The second (and more common) type of harassment is “hostile environment” harassment, in which an employee is subjected to offensive verbal or physical conduct in the workplace that is (i) based on a protected characteristic (sex, race, religion, age, national origin, etc.), and (ii) sufficiently severe or pervasive as to unreasonably interfere with the employee's work performance or create an intimidating, hostile, or offensive work environment. Hostile environment harassment need not involve any actual or threatened change in the victim's compensation, job duties, or other tangible terms and conditions of employment.
Prevalence And Costs Of Workplace Harassment
As the EEOC details in its Report, workplace harassment remains a persistent problem in the United States. Approximately one-third of the roughly 90,000 charges of discrimination filed with the EEOC in 2015 included claims of workplace harassment. In turn, nearly half of those 30,000 discrimination charges alleged harassment of a sexual nature. These numbers have remained fairly steady over time – in total, since 2010, employees have filed nearly 175,000 EEOC charges alleging workplace harassment.
At the same time, workplace harassment often goes unreported. Indeed, the EEOC's Report indicates that the least common response by an employee targeted with harassment is to take formal action. The reasons that harassment victims often do not report the conduct are varied, including (i) fear that management will not believe, or will fail to act on, their allegations; (ii) concern that they will be blamed for sparking or inviting the offender's actions; and (iii) worries about potential repercussions for complaining, both in their current workplaces and in their overall careers.
When employees do complain of workplace harassment, the repercussions for employers can be substantial, including bad publicity, lost productivity, attorneys' fees, and potential damage awards. Since 2010, the EEOC has recovered more than $700 million (through settlements and court judgments) on behalf of employees alleging harassment, including approximately $125.5 million during 2015. Given that most harassment cases are brought by employees themselves, as opposed to the EEOC, these figures represent only a small percentage of the monies paid out by employers in recent years as part of harassment settlements and damage awards.
Preventing Harassment In The Workplace
The EEOC's Report suggests a number of important steps that employers should take to minimize instances of workplace harassment:
Successful Anti-Harassment Policies
As a threshold matter, every employer should have a formal, written, anti-harassment policy. (Indeed, such policies are legally required in Massachusetts and some other jurisdictions.) The policy should include all of the following: (i) a clear definition of prohibited conduct, along with specific examples; (ii) a detailed description of how to file a complaint, including multiple reporting avenues; (iii) a statement that complaints will be kept confidential to the extent practicable; and (iv) an assurance that an employee will not be subjected to retaliation for complaining in good faith of harassment.
The Report also recommends certain policy provisions based on current technology trends. For example, given the prevalence of social media in today's society, an employer's anti-harassment policy should make clear that inappropriate behavior toward co-workers on social media may violate the policy.
In its Report, the EEOC strongly recommends that employers conduct regular anti-harassment training sessions for employees. By helping employees better understand the broad range of actions that can qualify as unlawful harassment - as well as the fact that harassment can be based on characteristics such as age, religion, and national origin, in addition to sex - such training can help reduce future instances of harassment.
The Report also suggests that anti-harassment training be individually tailored for different types of employees. “Generic” training presentations that do not take into account employers' specific workforces and cultures may not resonate with employees and, accordingly, may be of limited effectiveness. Instead, trainings should incorporate realistic examples and scenarios from the specific worksite(s) involved.
In addition, the Report recommends that employers provide additional training to middle-management and first-line supervisors. Such training should include practical suggestions on how to recognize and respond to instances of possible harassment in the workplace, even before the conduct reaches a legally actionable level.
Promoting Leadership And Accountability
Finally, the Report urges that employers' top-level leaders take appropriate steps to promote an inclusive, respectful workplace culture. In particular, executives and other high-level management should personally model civility and respect and stress the importance of promoting, fostering, and maintaining a harassment-free work environment.
Positive leadership, alone, is not enough - employers need to have systems in place to ensure that reports of harassment are addressed appropriately. Thus, it is also critical for each employer to maintain: