Lamm Bachman discusses the latest legal developments regarding workplace harrassment in C-Level Magazine - November, 2016. Click to view the pdf.

This summer the Equal Employment Opportunity Commission (EEOC) issued a report of the EEOC Select Task Force on the Study of Harassment in the Workplace. The Select Task Force (STF) report provides a stern warning that although employers have made substantial strides in strengthening efforts to prevent workplace harassment through the implementation of anti-harassment policies, training, and well-established reporting and investigative procedures, more work still needs to be done. The STF report noted that with regard to the approximate 90,000 employment discrimination charges filed with the EEOC in 2015, nearly one-third included an allegation of harassment.

If simply abiding by the law to ensure a workplace is free from harassment does not motivate employers to consider making additional changes, perhaps the business case set forth in the STF report will incentivize employers to reconsider their anti-harassment initiatives. Every year employers incur significant expense related to defending harassment charges and lawsuits. In addition to paying legal fees and monetary damages, many businesses suffer from the intangible effects of harassment in the workplace. The STF report cites several studies confirming that workplace harassment results in lower productivity, absenteeism, increased employee health issues, employee stress and anxiety (affecting not only the victim of harassment but also bystander employees), and high rates of employee turnover. All are factors that increase the cost of doing business. While many employers remain confident they have done everything possible to prevent harassment in the workplace, the STF report offers new insight and suggestions that could yield an outcome to ultimately improve the bottom line.

Our business already has an anti-harassment policy, what more can we do?

The STF recommends that employers review current anti-harassment policies and consider revising to include a clear statement that harassment based on any protected characteristic will not be tolerated. Such protected characteristics include: race, religion, national origin, sex, age, disability or genetic information. Anti-harassment policies should also set forth a simple description of prohibited conduct, the reporting procedure and impartial investigative process, an assurance for confidentiality to the extent possible during an investigation of the report, a statement of immediate and proportionate corrective action if harassment has occurred and that the reporting party will be protected from retaliation. Employers are also encouraged to ensure that the anti-harassment policy is written in clear, simple words and provided in all languages commonly used by employees in the workplace.

Since our anti-harassment procedure encourages reporting of harassment allegations and we rarely receive any reports, isn’t it safe to assume that there is no harassment occurring in our workplace?

According to the STF, employers should not assume that the lack of complaints means that no harassment is occurring in the workplace. The STF report indicated that while some employees report harassing behavior, the vast majority of employees who experience sex-based harassment avoid the harasser, deny the situation, attempt to forget or ignore the behavior or simply choose to tolerate the behavior. Based upon the lack of formal reporting, the STF recommends that employers consider moving away from a simple compliance mindset to one that fosters a work environment that is part of a diversity and inclusion strategy. In other words, harassment is less likely to occur in a workplace that stresses the importance of overall respect for and civility toward all employees. This starts with strong leadership and systems in place that hold all employees accountable for diversity and inclusion.

If our business requires that all employees participate in mandatory anti-harassment training, why would we need to offer any additional training?

The STF recommends that anti-harassment training should include workplace civility training and bystander intervention training. Currently, a vast number of employers provide anti-harassment training that focuses on the extreme examples of harassment and the negative conduct or behavior. However, the STF suggests that training which includes a focus on civility in the workplace may yield more positive results because employees are provided with examples of how to treat coworkers with respect which contributes to creating a culture of inclusion. Likewise, providing bystander intervention training arms employees with tools for recognizing potential problematic conduct and empowers employees to take responsibility for either intervening or reporting harassing conduct that previously may have gone unchecked or unreported.

Are there certain risk factors that businesses should take into account when revamping anti-harassment initiatives?

The STF report identified a number of risk factors that may predispose an employer to harassment charges and claims and offered additional commentary in regard to the employees who are viewed as particularly valuable to the employer. Such employees may believe that the workplace rules do not apply to them and as a result the corporate culture tolerates their harassing and disrespectful behavior. Employers are encouraged to pay particular attention to such employees and address inappropriate conduct as this type of employee is potentially toxic to the organization.

Other risk factors include significant power disparities between different groups of employees, workplaces that tolerate or encourage alcohol consumption, workforces with younger employees who may be less aware of acceptable workplace behavior and decentralized workplaces with limited communication between different levels of the organization.