By: Lauren G. Goetzl
In light of the #MeToo movement, it should come as no surprise that the U.S. Equal Employment Opportunity Commission is paying more attention to sexual harassment in the workplace. The EEOC’s June 2018 press releases reflect that sexual harassment is at the forefront of the agency’s initiatives – nearly half of its press releases from June 2018 involved sexual harassment claims. The same month, the EEOC’s Select Task Force on the Study of Harassment in the Workplace announced that the EEOC received 12,000 charges of sex-based harassment, 9,000 charges of race-based harassment, and 13,000 charges of harassment on other grounds during the EEOC’s 2017 fiscal year. Although the Select Task Force also noted that the EEOC has “not seen a big increase in charges filed” since the Harvey Weinstein story broke in October 2017, given the agency’s increased interest in sexual harassment cases, employers should focus on preventative measures to minimize sexual harassment allegations and claims.
A good place for employers to start is the Report on the Study of Harassment in the Workplace, released by the Select Task Force in 2016. The Report contains numerous useful recommendations about preventing harassment in the workplace, as follows:
- First, employers should work on fostering an organizational culture in which harassment is not tolerated by, among other things, assessing workplaces for harassment risk factors, conducting climate surveys to assess the extent to which harassment is an issue in their organization, devoting sufficient resources to harassment prevention efforts, ensuring prompt, proportionate, and consistent discipline whenever harassment is found, and holding managers and front-line supervisors accountable for preventing and/or responding to harassment.
- Second, employers should develop and maintain a comprehensive anti-harassment policy, ensure that the policy is communicated frequently to employees, offer (and even periodically test) a range of different reporting methods, and devote sufficient resources to ensure their workplace investigations are prompt, objective, confidential (whenever possible), and thorough.
- Finally, employers should offer regular and universal anti-harassment compliance training and devote sufficient resources to training middle management and first-line supervisors on effectively responding to harassment.
The Select Task Force and its witnesses provided an update on the status of harassment in the workplace at the Task Force’s June 11, 2018 meeting, and proposed a number of measures for combating sexual harassment, including:
- abolishing mandatory arbitration clauses for harassment claims,
- developing protections for independent contractors and other workers who are not currently protected under federal law,
- prohibiting or limiting non-disclosure provisions in harassment settlements,
- requiring mandatory harassment training, and
- establishing individual liability for harassment.
The Select Task Force also noted that, as of January 2018, 28 states and the District of Columbia had widely varying state laws on sexual harassment in the workplace. In addition, the Select Task Force observed that at least 20 states have introduced legislation in 2018 concerning workplace sexual harassment. Of those states, most had introduced legislation limiting or prohibiting non-disclosure agreements or ending forced arbitration agreements, some proposed requiring sexual harassment training for employers and employees, and others sought to require employers to maintain employee complaint records for a certain period of time, to create task forces to develop policy recommendations on sexual harassment in the workplace, and/or to establish a cause of action against employers or employees for workplace harassment.
Given the considerable and ongoing developments in this area, employers are highly encouraged to seek counsel from employment attorneys well-versed in employment law to ensure compliance with current legal authority.