In January 2015, the federal Equal Employment Opportunity Commission (“EEOC”) established a special task force to study harassment in the workplace. That task force spent a year and a half studying the “myriad and complex issues” involved in workplace harassment. Last month, the EEOC task force published their formal findings and employer recommendations.
By way of background, the EEOC task force summarized the latest data on harassment in the workplace. That data revealed that, for FY 2015, harassment claims brought to the EEOC consisted of the following:
— 45% alleged harassment on the basis of sex
— 34% alleged harassment on the basis of race
— 19% alleged harassment on the basis of disability
— 15% alleged harassment on the basis of age
— 13% alleged harassment on the basis of national origin
— 5% alleged harassment on the basis of religion
The data also revealed the harassment continues to be a costly problem for employers:
— $125,500,000 was secured by the EEOC in FY 2015 for claimants during the pre-litigation process
— $39,000,000 was secured by the EEOC in FY 2015 for claimants during litigation
— Employers have a 11.7% of having an EEO claim brought against them
— 19% of EEO matters have a defense and settlement cost that averages $125,000 per claim
After an exhaustive review and analysis, the EEOC special task force concluded that:
— Workplace harassment remains a persistent problem
— Workplace harassment too often goes unreported
— There is a compelling business case for stopping and preventing harassment
— Leadership and accountability are critical to success
— Training must change — new and different approaches must be examined
Based on these findings, the EEOC special task force made the following employer recommendations:
On leadership and accountability:
— Employers should foster an organizational culture in which harassment is not tolerated, and in which respect and civility are promoted.
— Employers should communicate and model a consistent commitment to that goal.
— Employers should assess their workplaces for the risk factors associated with harassment and explore ideas for minimizing those risks.
— Employers should conduct climate surveys to assess the extent to which harassment is a problem in their organization.
— Employers should devote sufficient resources to harassment prevention efforts, both to ensure that such efforts are effective, and to reinforce the credibility of leadership’s commitment to creating a workplace free of harassment.
— Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the severity of the infraction.
— In addition, employers should ensure that where harassment is found to have occurred, discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
— Employers should hold mid-level managers and front-line supervisors accountable for preventing and/or responding to workplace harassment, including through the use of metrics and performance reviews.
— If employers have a diversity and inclusion strategy and budget, harassment prevention should be an integral part of that strategy.
On developing proper policies and procedures:
— Employers should adopt and maintain a comprehensive anti-harassment policy (which prohibits harassment based on any protected characteristic, and which includes social media considerations) and should establish procedures consistent with the principles discussed in this report.
— Employers should ensure that the anti-harassment policy, and in particular details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
— Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
— Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
— Employers should periodically “test” their reporting system to determine how well the system is working.
— Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
— Employers should ensure that where harassment is found to have occurred, discipline is prompt and proportionate to the behavior(s) at issue and the severity of the infraction. Employers should ensure that discipline is consistent, and does not give (or create the appearance of) undue favor to any particular employee.
— Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of their policies, reporting systems, investigative procedures, and corrective actions put into place by those employers, in a manner that would allow research data to be aggregated in a manner that would not identify individual employers.
On training and compliance issues:
— Employers should offer, on a regular basis and in a universal manner, compliance trainings that include the content and follow the structural principles described in this report, and which are offered on a dynamic and repeated basis to all employees.
— Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information – even before such harassment reaches a legally-actionable level.
— Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.
— Groups of employers should consider coming together to offer researchers access to their workplaces to research the effectiveness of trainings, particularly in the context of holistic harassment prevention efforts, in a manner that would allow research data to be aggregated and not identify individual employers.
You can read the EEOC special task force’s full report here.