The headlines in the news these last two weeks involving Hollywood producer Harvey Weinstein has put the spotlight on the issue of sexual harassment in the workplace. But the Equal Employment Opportunity Commission (EEOC) has been attempting to focus our attention on the issue of workplace harassment for over a year now, when it issued a study of harassment in the workplace, in an effort to “reboot workplace harassment prevention efforts.” The “Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” (“the Report”) came out in June 2016, finding that workplace harassment remains a persistent problem and too often goes unreported.
The Select Task Force consisted of two EEOC commissioners as well as outside experts from employer, employee, human resources, academic, and other communities. The focus of the report, authored by co-chairs Chai R. Feldblum and Victoria A. Lipnic, was unwelcome or offensive conduct based on a protected characteristic under employment anti-discrimination law.
The Report noted some interesting statistics regarding the prevalence of harassment-based complaints. In 2015, the EEOC received approximately 28,000 charges that alleged harassment from employees working for private or state or local government employers, and 6,741 charges from federal government employees. Broken down by protected characteristic, sex-based harassment was most prevalent in charges from private or state or local government employees, while race-based harassment made up the largest percentage of charges from federal government employees. The authors cited a sexual harassment study that found that approximately 90 percent of individuals who experience harassment do not take formal action such as filing a charge or complaint. However, recognizing that there are a lot of unknowns regarding the prevalence of harassment in the workplace, the Report recommended that the EEOC partner with public or private entities to develop and conduct a national poll to assess the prevalence of workplace harassment based on various protected characteristics. The Select Task Force is probably taking note of the “Me Too” campaign on social media (#metoo) coming in the wake of the outrage over Harvey Weinstein’s alleged conduct.
One area of the Report noted that employers should prevent harassment in the workplace not only because it is the right thing to do and legally required but because there is a direct, adverse financial cost to employers. Not only are there huge costs associated with defending, settling cases, or paying out judgments, but the report noted the indirect costs to businesses of decreased productivity, increased turnover, and reputational damage. Think about how the allegations against Harvey Weinstein have financially affected the Weinstein Company over just the last couple of weeks, let alone the potential reputational damage. According to the Report, $698.7 million has been paid out by employers to employees alleging harassment through the EEOC’s administrative enforcement pre-litigation process. In 2015, 33 lawsuits were filed by the EEOC alleging harassment. The report cited one estimate from 2012 of nearly $400 million paid out in settlements and court judgments in private lawsuits. These costs were noted to show that it makes good business sense to prevent harassment in the workplace.
Workplace culture was identified as having the greatest impact on allowing harassment to flourish or in preventing it from happening. The Report identifies a number of ideas for organizations to move toward prevention. The importance of leadership establishing a sense of urgency in preventing harassment was highlighted. The Report urged employers to assess risk factors that may enable harassment to flourish in the workplace, establish effective policies and procedures, and conduct effective trainings.
The task force explored training that could have a positive impact on an organization’s culture, noting multiple times that culture is one of the key drivers of harassment. Workplace civility training, which promotes respect and civility in the workplace generally, rather than focusing on illegal behavior, was identified as a means of preventing conduct from rising to the level of unlawful harassment. The Report cited research finding that “incivility is often an antecedent to workplace harassment, as it creates a climate of ‘general derision and disrespect’ in which harassing behaviors are tolerated.” The authors did recognize that Title VII was not meant to be “a general civility code for the American workplace”, citing a U.S. Supreme Court case, Oncale v. Sundower Offshore Servs., Inc., 523 U.S. 75, 80 (1998).
Expanding on the Report’s recognition that civility in the workplace is a step toward preventing unlawful harassment, the EEOC announced earlier this month that it was launching two new training programs for employers focusing on respect in the workplace. Leading for Respect (supervisor training) and Respect in the Workplace (for all employees) will be conducted by EEOC Training Institute staff.
A case study of the Los Angeles Department of Water and Power is cited in the Report, to highlight the potential benefits employers may experience if they implement training that focuses on mutual respect in the workplace. The organization implemented mandatory training for all employees on respect and created a “boot camp team” to address inappropriate conduct and provide coaching. After a short rise in internal EEO complaints, which they attributed to employees having more awareness of their rights and avenue to complain, complaints within the organization decreased by 70 percent.
The Harvey Weinstein saga should be a stark reminder to employers to ensure their employment policies and procedures are compliant with both federal and state laws and to ensure that they are being implemented properly. Employers should consider training programs that not only focus on legal compliance but that could have a positive impact on workplace culture and further efforts to eliminate unlawful harassment in the workplace.