Editor’s note: This article first published on our blog October 30, 2013 and originally appeared in the Memphis Business Journal.
Employers can anticipate that charges and lawsuits alleging harassment will continue and potentially increase as a result of the current focus of the Equal Employment Opportunity Commission.
In December 2012, the agency approved a Strategic Enforcement Plan for fiscal years 2013-2016 which established harassment prevention as one of its six national priorities. The commission stated that it will deter workplace harassment by conducting a targeted outreach campaign aimed at educating employers and by pursuing investigations and litigation. According to the agency, its enforcement endeavors will include an emphasis on eliminating systemic discrimination which it defines as “a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.”
In addition to announcing its multi-year planning initiatives moving forward, the EEOC issued a press release highlighting statistics, activities and achievements during the 2012 fiscal year. Among its accomplishments, the agency noted that it “obtained the largest amount of monetary recovery from private sector and state and local government employers through its administrative process – $365.4 million.” The commission achieved settlements without litigation that secured $36.2 million for victims of unlawful discrimination.
Year-end data also showed that retaliation, race and sex discrimination, which included allegations of sexual harassment, were, respectively, the most frequently filed charges in 2012. The EEOC’s website can be accessed for this and additional information on enforcement and litigation statistics, including trends. Links to various types of specific charges, such as harassment, can be found on the site as well as a number of new features that the commission has added.
While maintaining an awareness of the EEOC’s focus, employers also need to be mindful of the impact that claims or findings of harassment can have on their organizations. Time spent in investigations and hearings is likely to detract from other business objectives. Publicity can damage the organization’s reputation. Settlements or negative rulings can be costly. When harassment is present in the workplace, the results can include a decrease in employee morale, commitment and productivity and an increase in conflicts, absenteeism and turnover.
The potential for these negative consequences can be minimized. Employers can be proactive in taking preventative actions to eliminate harassment. In the event of occurrences, corrective actions can be taken, as appropriate.
The following are a number of tips to assist employers in creating a harassment-free workplace:
- Institute a harassment-free workplace policy which clearly states that harassment is not tolerated based on an individual’s sex, race, color, national origin, age, religion, disability, genetic information, or any other legally protected status.
- Incorporate a complaint procedure in the policy that allows employees to bypass their immediate supervisors and report violations directly to other members of management, as specified, and/or the human resource department.
- Establish an understanding that anyone in the workplace can be a harasser, including supervisors, co-workers and non-employees, such as vendors and customers.
- Develop an expectation that any employee who experiences, witnesses, or becomes aware of workplace harassment is required to report the situation promptly.
- Communicate that employees can raise issues of harassment without concerns of potential retaliation.
- Assure employees that complaints of harassment will be treated confidentially, to the extent practical, and that information will be shared only on a need-to-know basis or as required by law.
- Establish an expectation that policy violations will subject employees to discipline up to and including termination of employment.
- Examine management’s decisions prior to terminating an employee or taking other adverse employment actions to determine if there is a potential basis for charges of retaliation.
- Create an understanding among all employees that there is a need to develop an awareness of any potential stereotypes and/or biases that they may have involving members of a protected class and to guard against taking harassing actions based on these types of generalizations and prejudices.
- Implement training for supervisors and managers that covers topics, such as the organization’s policy, liabilities associated with harassment, and supervisory responsibilities that include an expectation that all members of management will serve as role models for a harassment-free workplace.
- Provide training or information for current and new employees to assist them in understanding harassment, the organization’s policy and their responsibilities, including the need to tell harassers that their conduct is unwelcome and must stop unless the discussion makes them reasonably feel unsafe.
- Initiate refresher training on a periodic basis.
- Emphasize the importance of the policy by posting copies in places where it will be visible to all employees, applicants and other non-employees.
- Investigate alleged incidents of harassment to determine facts in a prompt, objective and methodical manner and take action, as appropriate.
- Recognize the complexity of the legal landscape, seek input from attorneys and consultants, and stay up-to-date on relevant compliance issues. For example, a pending U.S. Supreme Court case is expected to define “supervisors” and, therefore, may impact employers’ liabilities.
- Create an organizational culture that fosters respect and inclusion.