The recent flood of public disclosures shows how critical it is for businesses to act swiftly to address the issue.
Published in NH Business Review (12/4/2017)
Another day, another three or four celebrities disgraced by allegations of sexual harassment.
Recently, two Equal Employment Opportunity Commission commissioners, speaking to an audience of labor and employment attorneys, said that visits to the sexual harassment page on the organization’s website have increased fourfold since the Harvey Weinstein scandal broke. The message to employers: be prepared for an onslaught of new allegations and claims. Given the patterns that preceded the recent claims now dominating the airwaves, the EEOC is likely not surprised by these developments.
In 2015, the agency received almost 28,000 charges of discrimination alleging workplace harassment — a number that had remained relatively constant over the previous five years. In response, they formed a task force that spent a year studying the issue. They issued a report in June 2016, “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace,” which concluded that sexual harassment remains a significant workplace issue.
It also concluded that workplace sexual harassment training initiatives are often ineffective in stopping such misconduct.
“Much of the training done over the last 30 years has not worked as a prevention tool,” the EEOC commissioners wrote, adding that “ineffective training can be unhelpful or even counterproductive.” The clear message of the report is that the most common trainings are designed to minimize legal risk to companies rather than change behavior in supervisors or employees.
Not surprisingly, businesses wonder whether the problem of harassment is percolating in their companies or if it is a problem limited to the rich, famous and powerful, the Matt Lauers and Roger Aileses of the world. Presumably, employers are also asking what they have done wrong and what they should now be doing to address the issue.
The task force report does provide some recommendations suggesting that employers can improve anti-harassment initiatives by tailoring programs to meet the particular needs of the company, developing a “holistic culture of non-harassment that starts at the top” and holding all levels of employees accountable for their role in prevention.
“One size does not fit all” and unique programs are needed to “ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so).”
The report provides practical resources, including checklists and a “risk factor” analysis, to help employers assess their organizations and respond appropriately. The report also proposes exploring new approaches to anti-harassment trainings, including “bystander intervention trainings,” which give employees tools to intervene when they witness harassing behavior, and “civility trainings,” which foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class.
The report reiterates the long-standing recommendation against cookie-cutter or web-based trainings and reminds employers that interactive sessions with scenario-based discussions using hypotheticals relevant to the workplace itself are far more effective.
In addition, to upgrading training programs, employers should carefully review the risk factors for harassment mentioned in the report. They include:
- Homogeneous workplaces where the majority of individuals are of a particular, gender, race or ethnic group create the potential for the minority to be singled out to be made uncomfortable
- Workplaces where some do not conform to behavioral or sexual “norms”
- Workplaces with younger workers who may be particularly vulnerable to advances or where young managers may not be properly trained in appropriate behavior
- Workplaces with “higher-value” employees, such as those who bring in more sales or clients or those who possess particular creative talents or technical skills
- Workplace cultures that tolerate or encourage alcohol use
- Workplaces that rely on client service or satisfaction where those employees most admired by the client or the company’s audience are protected even if they behave poorly
The task force report confirms that the problem has not gone away, and the recent flood of public disclosures demonstrates how critical it is for businesses to act swiftly to address the issue.
Charla Bizios Stevens, who chairs the Employment Law Practice Group at the law firm of McLane Middleton, can be reached at [email protected] or followed on Twitter at @charlastevens. She also contributes regularly to employmentlawbusinessguide.com.