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June 20 — The next phase in the fight to end workplace harassment must focus on prevention, and companies should revamp training programs and be more aware of harassment risk factors, witnesses told the Equal Employment Opportunity Commission at a public meeting.
Workplace harassment remains a persistent problem 30 years after the U.S. Supreme Court first recognized that protection against such on-the-job abuse was prohibited under federal anti-bias laws, EEOC Chair Jenny R. Yang (D) said.
“Employers must have situational awareness” of their workplace in order to identify harassment risk factors and develop a “holistic” approach to the prevention of sex-based and other harassment, Commissioner Victoria A. Lipnic (R) said.
Harassment prevention measures may include “civility” and “bystander intervention” training, Commissioner Chai R. Feldblum (D) added, as traditional anti-harassment training is often ineffective as a prevention tool.
Bystander training empowers co-workers to report harassment or support colleagues who are subject to such abuse, Feldblum said. It has been effective in combating sexual violence among students as “it creates a culture of collective responsibility,” she said.
The effectiveness of bystander training for the workplace needs to be explored, as it “could be a game-changer,” Feldblum said.
In addition to hearing testimony from Feldblum, Lipnic and other witnesses, the EEOC released at the meeting a report compiled by a Select Task Force on the Study of Harassment in the Workplace formed by the agency in January 2015.
The task force was made up of 16 members, including plaintiffs' and management lawyers, representatives of employee and employer advocacy groups, academics from various social science disciplines, and representatives from organized labor. It met numerous times both publicly and privately for more than a year.
Feldblum and Lipnic co-chaired the task force and authored the report, which presents their findings rather than a consensus of the task force as a whole.
According to the report, workplace harassment remains a persistent problem, as almost 33 percent of the charges the EEOC received in fiscal year 2015 included allegations of the some form of harassment. Moreover, incidents of harassment are underreported, it found.
The two least likely responses to workplace harassment are for an employee to complain to their employer and for an employee to file a formal complaint with the EEOC, Feldblum said.
Employees who fail to report harassment do so because they fear they won't be believed or that they'll experience some form of retaliation for complaining, the report found.
The EEOC task force's report identified risk factors that employers should watch for to help stamp out harassment. According to the report, harassment is more likely to occur in the following types of workplaces:
There are limits to what a single employee can accomplish by reporting that she's been harassed, Lilia Cortina, a professor of psychology and women's studies at the University of Michigan, told the commission.
Responding to harassment on an incident-by-incident basis isn't enough; employers need to take a more holistic approach, she said. That includes efforts to combat workplace incivility, she said, echoing the task force's findings.
“General incivility is not so harmless,” as it usually goes hand-in-hand with more egregious forms of workplace abuse, Cortina said.
Lipnic said “if there was one overriding point” of the task force's findings, it's that measures to improve leadership and accountability must improve.
It's vital that employers “model good behavior at the highest levels” and that companies devote sufficient resources to educate and train front-line managers, she said.
Front-line supervisors should be sanctioned for failing to properly address workplace harassment and they should be rewarded for effectively addressing it, the report found.
“The real goal is creating a respectful workplace,” and organizational leaders must be held accountable for a failure to do so, said Fran Sepler, president of Minneapolis-based Sepler & Associates.
Task force member Rae T. Vann told the commission that she is confident that business leaders will view the report as an opportunity. Acknowledging that the “reboot” the EEOC is calling for is necessary, she said the risk factors and prevention tools outlined in the report should be helpful to employers' proactive prevention efforts. Vann is general counsel to the Equal Employment Advisory Council, an employer advocacy group in Washington.
Many companies view anti-harassment efforts as a cost or as a way to avoid legal liability, task force member Joseph M. Sellers said. It's important that they understand the task force's conclusion that harassment prevention will help improve their profitability, said Sellers, a partner with plaintiff-side law firm Cohen Milstein Sellers & Toll PLLC in Washington.
Lipnic noted that employers paid $164.5 million to the EEOC last year to resolve workplace harassment claims. That doesn't include legal fees and other expenses they incurred on those claims nor does it include claims brought by private plaintiffs, she said.
She also noted the report's finding that employers' true costs for workplace harassment include expenses associated with decreases in worker productivity, increased employee turnover, and reputational harm.
Extensive data and literature on workplace harassment exists, but more and more harassment complaints deal with abusive behavior directed at protected traits other than gender, Feldblum said. These other forms of harassment haven't been adequately researched, she said, and funds need to be devoted to their study.
Sellers told the commission that “harassment evolves,” and new forms of harassment emerge as society changes. For example, workplace harassment of Muslims and the LGBT community has become more common, he said.
“We can't be static in how we think about harassment,” Sellers said.
The EEOC is a catalyst for bringing people together, but it's up to others to play their role in efforts to end workplace harassment, Feldblum said.
That's why another important aspect of the report proposes the launch of an “It's on Us” campaign, she said. The campaign was originally developed to reduce sexual violence in educational settings and was premised on the notion that faculty, campus staff and students should be empowered to be part of the solution, she said.
A similar campaign might assist in the fight to end workplace harassment, Feldblum said. It wouldn't be a small effort, “but why would we go small when the problem is so big,” she said.
EEOC Commissioners Constance S. Barker (R) and Charlotte A. Burrows (D) also participated in the meeting.
The meeting record will be held open for public comment for 15 days. Written comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street N.E., Washington, D.C. 20507, or e-mailed to firstname.lastname@example.org.
To contact the reporter on this story: Patrick Dorrian in Washington at email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the EEOC harassment report is available at http://src.bna.com/f2H. More information on the meeting, including text of witness testimonies, is available at https://www.eeoc.gov/eeoc/meetings/6-20-16/index.cfm.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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