EEOC Task Force Takes Broad Look at Harassment

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Dec. 7 — An Equal Employment Opportunity Commission task force on workplace harassment Dec. 7 heard witnesses describe abuse based on age, disability, religion, sexual orientation, gender identity and religion.

The 16-member group led by two EEOC commissioners was holding its third public meeting as it ponders ways to confront and prevent job harassment. Opening the meeting, Commissioner Victoria Lipnic said the panel of employee advocates, management lawyers and academics is “casting as wide a net” as it can to learn about different types of harassment and potential solutions.

Problems persist almost 30 years after the U.S. Supreme Court ruled that harassment is a cognizable claim under Title VII of the 1964 Civil Rights Act. Workplace harassment “wears many masks,” Lipnic said.

The task force won't produce a consensus report, but Lipnic and co-chair Commissioner Chai Feldblum will make recommendations to EEOC Chair Jenny Yang and their fellow commissioners after the panel completes its work, probably in early 2016.

The group's prior public meetings were held in Washington June 17 (66 BTM 197, 6/23/15).

Wide Scope of Potential Problems

During her testimony about disability-based harassment, plaintiffs' attorney Lisa Banks said workplace training, education and litigation all can raise awareness and act as partial deterrents.

But Banks acknowledged that she doesn't know “how one removes the instinct to be a bully” in the workplace. Changing individuals' “hearts and minds” to become more tolerant and respectful of differences remains a challenge, said Banks of Katz Marshall & Banks LLP in Washington.

External events, such as the recent attacks in Paris and San Bernardino, Calif., can trigger workplace comments directed at Muslim employees or those who appear to be Muslim, said Zahra Billoo, executive director of the Council on American-Islamic Relations for the San Francisco Bay Area.

A certain amount of “curiosity” from co-workers about Islam may be understandable, but Muslim employees need to know they can halt workplace conversations that make them uncomfortable, Billoo said. When CAIR receives complaints about harassment, it counsels workers to make clear to their colleagues if a conversation has crossed the line, she said.

The group also advises workers in the situation to “take copious notes” about behavior they deem harassing; “dot their ‘i's' and cross their ‘t's' ” with exemplary job performance; and “start looking for another job,” Billoo said.

Workers who are lesbian, gay, bisexual or transgender face “increasing levels of vulnerability” as more “come out” in the workplace, perhaps encouraged by legal victories regarding same-sex marriage, said Tara Borelli, a senior attorney with Lambda Legal in Atlanta.

More discrimination and harassment issues involving transgender workers arise as they become more visible in the workplace, Borelli said. Same-sex marriages can generate more claims about the denial of equal spousal benefits, she said.

Age-Based Harassment Is Real

Harassment based on age is “a serious problem” in the workplace, but it can be minimized or overlooked, said Daniel Kohrman, a senior attorney with AARP Foundation Litigation in Washington.

Although one might think the “force of demographics” would prevent age-based harassment in a workforce that's skewing older, Kohrman said persistent stereotypes about older workers still drive harassing behavior that often is surprisingly blunt.

“As older people become more prominent in the workplace, age bias is more serious, not less, and harassment is part of that,” he said.

Remarks about an individual's age, such as repeated references to the “old guy,” are seen as more innocuous and less harmful than comments based on other protected categories, such as race or sex, Kohrman said. Stereotypes about older workers, including that they are less flexible, resistant to change or can't handle new technology, persist even after social science studies have debunked many of those myths, he said.

The “reduction” of older workers to their age, with the looming threat to their continued employment, can create an abusive, damaging environment, Kohrman said.

Harassment based on age also “frequently involves” another protected characteristic, such as disability or sex, Kohrman said. For example, older female workers can be targets of harassment in particular sectors or industries, he said.

Proving age-based harassment can be difficult, as courts tend to find degrading comments, for example, aren't “severe enough” to meet the standard for actionable harassment, Kohrman said.

Also, unlike Title VII, the Age Discrimination in Employment Act doesn't provide for compensatory damages, which means there's little incentive to litigate a standalone age harassment claim, he said. This may be an area in which the EEOC can fill “the breach,” Kohrman said.

Potential Settings Run the Gamut 

Responding to task force members' questions, witnesses said harassment settings run the gamut, from the service sector to professionals' offices.

Workers in entry-level or blue-collar jobs may be more willing to complain than a large firm lawyer, for instance, who is “reluctantly tolerating” harassment for fear a complaint would ruin her partnership chances, Billoo said.

One sector in which LGBT individuals or others experiencing harassment are most vulnerable is law enforcement or other jobs in which they must rely on co-workers to keep them safe, Borelli said. Also, some employers are “hiding behind” supposed customer preference to justify harassment or banishment to back-office jobs for transgender workers, she said.

A “corporate quality index,” which makes non-discrimination and diversity a “competitive thing” among employers, can be effective to deter harassment because it can affect the bottom line, Borelli said.

Banks said in her experience, the best deterrent to harassment is a complaint and litigation. No employer wants to be publicly labeled as a “discriminator, ” she said.

But Title VII's “severe or pervasive” standard for harassment can pose “a real problem” for employees as courts often invoke it to grant summary judgment on harassment claims, Banks said.

Social media also has become “a big deal” as a potential source of harassment, particularly the use of anonymous messaging applications, Banks said. That type of harassment is causing harm on college campuses as well as some workplaces, she said.

Empowering Workers Online 

A relatively new service gives workers an opportunity to file petitions and complaints about workplace harassment or other problems online, said Jess Kutch, the co-founder of Coworker.org.

A worker “doesn't have to go through the trauma of a face-to-face confrontation to call out harassment,” she told the task force.

Workers, as well as some small businesses, also are using social media to learn the answers to their employment law questions, Kutch said. But the “downside” is that an online answer to legal questions “can come from anywhere” and there's a real need for reliable, accessible legal information online, she said.

The EEOC and other government websites aren't among the most searched sites for answers to legal questions, Kutch said. Also, a number of Coworker.org users initially believe they can't talk about their working conditions online, an impression that might be fed by employers' adoption of overbroad social media policies, she said.

The EEOC could improve its accessibility through “search engine optimization,” meaning a partnership with Google or another provider that would place the EEOC near the top if a user inquires about employment law, Kutch said. Also, the EEOC could develop a process for filing complaints online and help to make various government sites more compatible with each other, she said.

Asked how the anti-sexual-assault campaign might translate to the workplace, Johnson said the component of providing “tool kits” to students and others who want to volunteer might work in a workplace setting as well to prevent harassment. The bystander intervention education could be helpful in an anti-harassment context, she said.

Some task force members expressed concern about potential retaliation by employers against workers who post or support online petitions complaining about harassment or other workplace issues. They noted that about 40 percent of EEOC discrimination charges during the past few years included a retaliation claim.

But Kutch said workers risk retaliation whether or not they complain online or more privately. In its brief existence, Coworker.org is aware of only one case of retaliation for an online petition being posted, she said. A worker posting online probably has more protection from retaliation, at least in the short term, because he or she took a stance in public, Kutch said.

But a question remains in the long term, as to whether there's a “virtual black list” of people who make workplace complaints online, she said.

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

EEOC task force information, including testimony from prior public meetings, is available at http://www.eeoc.gov/eeoc/task_force/harassment/index.cfm.