Lessons Learned on Workplace Harassment in 2016 16:07, June 8, 2017

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Lessons Learned on Workplace Harassment in 2016

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More than 30 years after the Supreme Court recognized sexual harassment as a form of sex discrimination in violation of Title VII, workplace harassment is alive and well. Sexual harassment and harassment based on other protected characteristics remain an unfortunate and substantial part of the modern workplace, as evidenced by recent case law and the Equal Employment Opportunity Commission’s (EEOC) June report by the Select Task Force on the Study of Harassment in the Workplace (Report).

Evidence that Harassment Remains a Significant Problem

1. The Big Picture

Last year alone, the Report notes, workplace harassment resulted in $164.5 million in EEOC recoveries, as well as untold psychological and health consequences to harassed workers and harm to company productivity, turnover, and reputation.

In FY 2015, for example, the Report states that the EEOC received an average of 76 harassment charges each day. 28,000 harassment allegations were from the private sector employees (private industry, state, and local entities). That’s almost 1/3 of the 90,000 discrimination charges brought. Significantly, almost half the harassment complaints in the private sector were complaints of sexual harassment.

Today, a culture of harassment prevails in some large institutions and even entire industries. As we wrote in National Park Service Failed to Remedy Sexual Harassment:

In the case of the National Park Service, at least three employees did not believe there was enough institutional support to immediately report their experiences of sexual harassment. The apparent unwillingness to make victims feel safe coming forward by imposing consequences for sexual harassment reveals a culture lacking ethical underpinnings, as shown by top leadership decisions in this case.

We also recently wrote that although sexual harassment in the medical field has decreased over the years, one-third of female physician-scientists reported sexual harassment.

2. Significant Cases

Large-scale studies and statistics tell only part of the story.

Recent trends in case law indicate that there are previously unrecognized forms of workplace harassment. For example, in the last few years courts and the EEOC have interpreted Title VII to provide that harassment and discrimination based on sex includes sexual orientation.

Of course, not all “harassment” complaints give rise to liability, especially when the employer has taken efforts to properly document its discipline procedures.

But documentation is not the end of the story.

Does Training Help Prevent Harassment?

If you were to take a recent headline of an article about the Report published by the Society for Human Resource Management (SHRM) at face value, the answer is “no”: No Evidence That Training Prevents Harassment, Finds EEOC Task Force

On a closer look at the article—and more importantly, the Report—it turns out that the EEOC’s position is a bit more nuanced than that. Specifically, the Report says that there is not much empirical evidence about the effectiveness of harassment training, positive or negative. From the available studies and anecdotal evidence from testimony provided to the Select Task Force, the Report concludes that training alone will not prevent workplace harassment. Rather, harassment training should reinforce a holistic, top-down commitment to a workplace culture that does not tolerate harassment and holds every employee accountable.

1. Culture is Key

We’ve previously written articles about the importance of workplace culture. Cultivating a culture of compliance  can lead to business success as well as fewer lawsuits.

On the flip side, the EEOC Report noted the consequences of a noncompliant workplace culture that permits or encourages workplace harassment: “Turnover costs are the largest single component of the overall cost of sexual harassment,” according to a 2014 study. The Report also addressed the so-called “superstar harasser” (aka, the “toxic employee”) by noting that a recent study by Harvard Business School concluded that negative profit consequences result from failing to remedy problems caused by so-called “toxic workers,” especially those who are considered “top performers.”  “Avoiding these toxic workers,” summarized the Report, “can save a company more than twice as much as the increased output generated by a top performer.”

“Reputational costs alone can have serious consequences,” the Report continued, “particularly where it is revealed that managers for years ‘looked the other way’ at a so-called ‘superstar’ harasser.”

2. The Report in a Nutshell

These are the main points of the Report:

(*) Legal action and training alone cannot stop harassment.

(*) Harassment starts with a culture of tolerating or encouraging misconduct that can be addressed before it rises to the level of legally actionable harassment.

(*) Training can be an effective anti-harassment tool, so long as it’s part of a holistic harassment prevention effort by the employer.

(*) A holistic prevention effort starts at the top, but also requires systems that ensure accountability on all levels of the organization.

“Organizational culture is one of the key drivers of harassment,” notes the Report. The EEOC says a culture with zero tolerance of harassment starts at the top, but needs implementation at all levels: “These two sides of the coin – leadership and accountability – create an organization’s culture.”

To learn more about the Report and hear our analysis of it, check out our free webinar.

 

Compliance training is one way employers can reinforce a compliance culture and incorporate the EEOC’s recommendations that are applicable to them. If you’re unsure about how to do it, this case study on Namely, an HR-compliance startup that combined growth and culture with training, provides an inside look.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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