A significant employee-related development this year was a study of harassment and retaliation in the workplace by the Equal Employment Opportunity Commission (EEOC). Harassment as a legal issue dates back to 1986 when the US Supreme Court held that the sexual harassment of a female bank executive created a hostile work environment and was a form of gender discrimination actionable under Title VII of the Civil Rights Act of 1964. Meritor Savings Bank, FSB v. Vinson, 477 US 57 (1986). Harassment as a civil rights violation expanded through the years to include every type of discrimination.
Workplace harassment is the primary charge filed with the EEOC. One-third of the approximately ninety thousand charges received by the EEOC in 2015 included an allegation of workplace harassment. The Commission established a “Select Task Force on the Study of Harassment in the Workplace” comprised of outside experts, including management and plaintiff’s attorneys, labor and business representatives, academics, sociologists, psychologists, and experts in organizational behavior. The Task Force issued its report in June 2016.
The Task Force found an alarming number of people are victims of workplace harassment. While sexual harassment is the most common complaint, it is not the only form. The persistence of harassment, and its negative impact, are the same regardless of its form.
Another Task Force finding of equal concern was that when an employee is harassed, anywhere from 87% to 94% of these victims do not file a formal complaint. The most common responses are to:
- Try to avoid the harasser
- Deny or downplay the gravity of the situation
- Attempt to ignore, forget, or endure the harassment
- Turn to family members and friends for emotional support
Employees don’t file because they fear: their complaints will be doubted; no action will be taken; they might be blamed for the offending actions; and, professional or social retaliation. The Task Force Study found that these fears are well-founded. Employers are often indifferent to harassment reports, which means that a victim may conclude that the best course of action is to remain silent.
Every employer should care about stopping harassment. It is illegal and it is just wrong. The harassment impacts not only the victim, but also those who observe or learn about it. Time, energy, and resources are diverted from the work of the organization. It results in decreased performance and productivity, debilitating job dissatisfaction, withdrawal, disengagement, neglect, absenteeism, employee turnover, and reputational harm.
Persons who experience harassment are more likely to report depression, stress, anxiety, impaired well-being, decreased physical health, and even post-traumatic stress disorder (PTSD). There is growing evidence that others who observe mistreatment may also experience these mental and physical maladies.
The Task Force conducted a comprehensive analysis on how to stop harassment. Workplace culture has the greatest impact on whether harassment is tolerated or prevented. The Task Force emphasized: it starts at the top. The two primary keys to preventing or eliminating harassment are: 1) a commitment by leadership to creating a diverse, inclusive, and respectful workplace; and, 2) a system to hold employees accountable for their behavior.
The Task Force recommended:
- Employers should foster a culture where harassment is not tolerated and respect and civility are promoted.
- Employers should assess their workplaces for risk factors and minimize those risks.
- Employers should devote sufficient resources towards harassment prevention methods, and reinforce their commitment to a harassment-free workplace.
- Employers should ensure that when harassment occurs discipline is prompt, consistent, fair, and proportionate to its severity.
- Employers should hold mid-level managers and supervisors accountable for preventing and responding to workplace harassment.
- Harassment prevention should be an integral part of a diversity and inclusion strategy and budget.
A policy against harassment is essential. To be effective, the policy should include:
- A clear explanation of prohibited conduct, including examples;
- Assurance that employees who make complaints, or provide information related to complaints, will be protected against retaliation and confidentiality maintained;
- A well-defined process that provides multiple options to filing a complaint and a prompt, thorough, and impartial investigation; and,
- Assurance that the employer will take immediate and appropriate corrective action even though the behavior might not be legally-actionable, but could be if left unchecked.
The EEOC recommendation to address behavior even though it may not be legally-actionable is a major policy change.
Policies should also address prohibitions of harassment through the use of social media, which is usually outside the workplace. Discipline should be proportionate in this type of offense and should leave management with some flexibility. Having a zero-tolerance policy could suppress complaints by making the punishment too severe.
The Task Force found that the main focus of workplace harassment training should be on civility and bystander intervention. Where there is workplace civility, harassment is less likely to occur. The training should be periodic and conducted by effective and interactive trainers. In addition, there should be compliance training for mid-level supervisors. The EEOC recommends that the leader of the organization should introduce and attend the training, or at least introduce the training through a video appearance.
One organization I worked with several years ago asked me if I had new courseware for use with some previously trained managers. When I asked them what they wanted to accomplish, they indicated that several individuals were continuing to tell off-color jokes and make inappropriate comments. While I welcomed the opportunity to be of service, it seemed to me that the issue was not what training to do next but rather why these decision-makers hadn’t taken steps to deal with these individuals’ behavior and failure to perform to clear standards.
Stephen Paskoff, 8 Fundamentals of a Civil Treatment Workplace
If you wish to read about the Task Force’s findings and recommendations in more detail, go to http://tinyurl.com/jyf7a4f.
If a judge needs assistance or advice about employment law, contact Brenda Rodeheffer at (317) 234-3936 or