EEOC Harassment Task Force's Meeting Looks at Data, Potential Keys to Prevention

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By Kevin McGowan

June 15 — An Equal Employment Opportunity Commission task force on workplace harassment June 15 heard from a panel of psychologists that no quick fix exists to stop or prevent harassment on the job and the efficacy of training and other preventative solutions varies widely.

At the first public meeting of the Select Task Force on Workplace Harassment, Commissioner Victoria Lipnic (R) said the EEOC's aim is to educate itself on the nature and extent of the problem so the agency can determine where to focus potential solutions.

EEOC Commissioner Chai Feldblum (D), co-chair of the 16-member task force with Lipnic, said she wants the group to “make a real dent” in the persistent problem of harassment. The task force is designed not just to produce a report, but “to be a catalyst in our society,” Feldblum said.

Four academics who testified said harassment occurs at all workplace levels, but most often involves a power imbalance and is targeted at workers perceived as vulnerable because of their sex, race, ethnicity, disability or other status.

Most employers have anti-harassment policies and offer training, but their effectiveness varies widely and depends partly on how strong a no-tolerance message is sent by organizational leaders, the witnesses said. Steps taken solely to avoid legal liability generally aren't sufficient to alter workers' behavior, the witnesses said.

EEOC Chair Jenny Yang (D) announced formation of the task force at a Jan. 15 public meeting on the persistence of workplace harassment despite multiple U.S. Supreme Court decisions, EEOC guidance, training and education efforts and most employers' demonstrated interest in preventing workplace abuse.

The agency in March announced the task force members, a mix of university professors, lawyers, and representatives of employers, organized labor and civil rights groups.

What Do the Data Show?

The EEOC has seen discrimination complaints filed against federal agency employers drop by more than 20 percent over the past decade, said Dexter Brooks, associate director of the EEOC's Office of Federal Operations in Washington.

But harassment complaints are the exception to the general decrease, Brooks told the task force. Harassment claims now make up about 40 percent of all federal sector bias complaints filed with the EEOC, he said.

The EEOC collects and analyzes the data at every step of the federal complaint process and also evaluates federal agencies' anti-harassment training programs, Brooks said. The agency emphasizes early intervention to defuse potential discrimination, he said. “We want to address the issue before it meets the legal definition” of harassment.”

Meanwhile, private sector harassment charges filed with the EEOC actually have declined over the past five fiscal years, said Ron Edwards, director of program research and surveys in the EEOC's Office of Research, Information and Planning in Washington.

There hasn't been a “linear drop,” but rather increases or decreases in harassment charges filed year to year, Edwards said. Also, the number of harassment charges has grown in specific areas, including race/color, retaliation, age and disability, he said.

Private sector charges of disability harassment have “increased a great deal” and the alleged harassment generally is directed against persons with “behavioral” disabilities such as anxiety disorders or depression, Edwards told the task force.

Harassment is the second most frequent adverse action—trailing only termination—that the EEOC raises in lawsuits filed by the agency, Edwards said.

The EEOC is working on a research and data plan in which it hopes to develop information regarding “pockets of workers that seem to experience harassment,” Edwards said. For example, Hispanic women working in crop production appear to be at particular risk, he said.

The EEOC's research division also hopes to identify industries or particular geographic areas in which persons with disabilities are most likely to encounter harassment, Edwards said.

A decrease in EEOC sexual harassment charges and complaints is “imperfectly correlated” with the actual level of sexual harassment that may be occurring, said Louise Fitzgerald, professor emeritus of gender and women's studies and psychology at the University of Illinois.

Fitzgerald and the other three psychology professors who testified said workplace harassment is under-reported, mostly because workers fear loss of their jobs or even careers if they complain.

EEOC charges are “undoubtedly the tip of the iceberg” when it comes to measuring the extent of harassment, said Mindy Bergman, a psychology professor at Texas A&M University.

Harassment can happen to anyone at any level of the workplace, but it's more likely to occur to workers with “lower power markers,” meaning they belong to a racial, ethnic or sexual minority within their workforce, Bergman said.

The cause of harassment usually is “not just some bad apple” within an organization, but rather reflects the culture both inside and outside the workplace, Bergman said.

Spectrum of Harassing Conduct 

Studies of sexual harassment show that “gender harassment,” which refers to sexist or demeaning conduct toward female employees, is “by far, the most common” form of such harassment, said Lilia Cortina, a psychology professor at the University of Michigan in Ann Arbor.

Such harassment “may have little to do with sexuality, but everything to do with gender,” Cortina said. Studies also show a harassed employee's “least common response” is to file a complaint because of fear of retaliation, Cortina said.

The EEOC, courts and employers have emphasized “reporting mechanisms” as the best solution, but it's a remedy that's limited at best, Cortina said.

Employers should “embed” anti-harassment training into broader efforts to eliminate “incivility” in the workplace, Cortina said. She suggested incivility can be “a gateway drug” or “precursor” to “more blatant workplace abuse” and a “hidden means” to creating a hostile work environment. Employers' prevention policies should address sexist comments, racial jokes and the like as part of creating a culture of respect, Cortina said.

More research is needed regarding the “subtle end of the spectrum” of workplace abuse, as studies suggest name-calling on a daily basis, for example, can have as “severe an impact” as less frequent physical forms of harassment, Cortina said.

Retaliation against employees who allege harassment occurs at “an alarmingly high rate” and takes “multiple forms,” both social and professional, Cortina said.

Sahar Aziz, a task force member and Texas A&M University law professor, expressed some concern an employer emphasis on “civility” could potentially be used against minorities in the workforce, resulting in discrimination based on cultural stereotyping.

But civility promotion efforts are a means of creating mutual respect among all demographic groups in the workplace, not “a way to silence” any individual or group, said Eden King, a psychology professor at George Mason University in Fairfax, Va.

External Events as Triggers 

What's the influence of external events in spurring workplace harassment? asked task force member Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund. For example, is the “coarsening” of the national debate over immigration policy debate causing more workplace harassment against persons who aren't U.S. natives or look foreign, he asked.

There's “no doubt” external events influence workplace harassment, with the hostility toward Arabs, South Asians or other individuals perceived as not belonging in the U.S. after the Sept. 11, 2001, attacks a “great example,” said Bergman of Texas A&M.

Perhaps there are ways to identify news events happening now that might trigger certain forms of harassment and take steps to prevent it, Saenz suggested.

Can the EEOC illuminate a correlation between external events and workplace harassment based on agency charge data? Aziz asked.

The EEOC can “break it down a little more” by looking at the charging party's characteristics and counting the number of allegations, said Edwards, the EEOC program research director.

Certain “charge behaviors” may be linked to current events, such as a spike in EEOC sexual harassment charges after the 1991 Senate committee hearings on Justice Clarence Thomas's nomination to the Supreme Court, Edwards said.

Elements of Effective Program 

Much of the discussion at the hearing revolved around what works or doesn't work in employer training programs and other harassment prevention efforts.

The “worst thing” an employer can do is use the legal definition of harassment to circumscribe its workplace policy, Fitzgerald said. Rather, she suggested a “behavioral” approach that includes lists of prohibited actions coupled with “positive” descriptions of an employer's expectations of its workforce.

Anti-harassment policies “written by attorneys” in “highly complex” prose buried in employee manuals and forgotten after the acknowledgment form is signed don't help anyone, Fitzgerald said.

The anti-harassment message shouldn't be confined to training but rather made part of the entire corporate culture and reiterated in places outside the training room, the witnesses said.

A successful program sends the message that the company's leaders encourage employee reports of suspected harassment, Fitzgerald said. Discipline and sanctions against those who violate the policy also convey to workers the employer “really means it,” she said.

“What we say is if [an employer] gets a lot of reports, your program is working,” Fitzgerald said. That can be a sign of a “good guy” employer, she said.

There's an “inherent inconsistency” in how we think about harassment in that “very compliance-oriented” employers continue to receive complaints, said Rae Vann, a task force member and general counsel of the Equal Employment Advisory Council in Washington.

An employer can have an “alignment” problem, meaning the culture at one level of the organization isn't necessarily the culture at another, Bergman said.

An employer with a “compliance orientation” also “doesn't really tell people how to behave,” Bergman said. The aim should be not just to be “respectful” of others in the workplace despite their differences, but “honoring” where people are coming from, she said.

The “compliance” level is at “the very surface,” Bergman said. “It's a box-checking exercise.”

A pure compliance approach “doesn't stop harassment, it just gives people an avenue to report it,” she said. To prevent harassment, “you need to change behaviors,” Bergman said.

More study is needed on numerous unanswered questions, but obstacles include lack of funding and employers' reluctance to permit access to their workplaces for research because potential negative results could have repercussions, the university professors said.

Commissioner Lipnic said the EEOC task force's public meeting is the first of what she hopes will be multiple public forums.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

More information on the EEOC task force is available at http://www.eeoc.gov/eeoc/task_force/harassment/index.cfm.