By Kevin A. Fritz and Rashal Baz
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.
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|
|Resolutions By Type|
|No Reasonable Cause||17,316||19,696||19,331||17,144||15,977||17,866|
|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.
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.
For additional thoughts and comments on the study, see what our colleagues in the class action world are saying. If you have a question on this topic or training practices, please contact the authors or your Seyfarth Shaw attorney.