During fiscal year 2015, the EEOC received approximately 90,000 charges of employment discrimination. Nearly a third of those charges included harassment claims based on sex (including sexual orientation, gender identity, and pregnancy), race, disability, age, ethnicity/national origin, color, and/or religion. The EEOC has long recognized harassment as a persistent problem in the workplace and, in 2015, created a task force to study harassment in the workplace. The Report resulting from the study, authored by Chai R. Feldblum and Victoria A. Lipnic, EEOC Commissioners and task force co-chairs, was released on June 20, 2016, and called upon employers to rethink and revamp their policies and training on harassment.
In their Report, the Commissioners stressed the importance of anti-harassment policies. Interestingly, the Commissioners cautioned employers with regard to the use of the phrase “zero tolerance” in an anti-harassment policy and stated that such “zero tolerance” policies may be misleading and potentially counterproductive as “[a]ccountability requires that discipline for harassment be proportionate to the offensiveness of the conduct.” The Commissioners noted examples of varying disciplines for certain types of conduct: “sexual assault or a demand for sexual favors in return for a promotion should presumably result in termination of an employee; the continued use of derogatory gender-based language after an initial warning might result in a suspension; and the first instance of telling a sexist joke may warrant a warning.”
In the Report, the Commission specifically made several recommendations to employers regarding harassment policies, including the following:
- 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.
A large portion of the Report was dedicated to the area of harassment training and prevention. The Commissioners found that too much of the effort and training to prevent workplace harassment over the last 30 years has been ineffective and focused on simply avoiding legal liability. The Report recommends that employers explore new types of training to prevent harassment, including workplace civility and bystander intervention training. Specifically, the Report recommends the following to employers relating to training:
- 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.
What to do now? While the Report did not make any ground-breaking changes to how the EEOC views harassment, it serves as a good reminder that harassment is certainly on the EEOC’s radar and the EEOC will be looking to employer policies and training relating to harassment. Now is a great time to reassess your harassment policies and make sure the policies cover all forms of harassment rather than just sexual harassment and that they prohibit retaliation and have sufficient reporting mechanisms. The protected classes that need to be included in your harassment policy may vary by state, but certainly should at least include race, color, religion, sex (certain states may require including sexual orientation and gender identity), pregnancy, national origin, age, disability and genetic information. It is also a good time to consider establishing or revamping the training provided to employees and supervisors/managers relating to harassment. A copy of the full report, which includes detailed recommendations for harassment prevention, including a chart of risk factors and checklists for employers, may be found here.