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THE EEOC Issues a Report and Recommendations on Workplace Harassment

It has beenthirty years since the U.S. Supreme Court held that workplace harassment is anactionable form of illegal discrimination in the landmark case, Meritor Savings Bank v. Vinson.  The U.S. Equal Employment OpportunityCommission (“EEOC”) is the agency charged with enforcing federal workplacediscrimination laws, including harassment.Since 2010, employers going through the EEOC’s pre-litigationadministrative process have paid out an astonishing $698.7 million to employeesalleging harassment.  This figure representsjust a small percentage of the direct and indirect costs to employers due toworkplace harassment.   

In June 2016,the EEOC released a report on the study of harassment in the workplace whichroughly coincided with the thirty year anniversary of the Vinson case.  Employersshould consider the information and recommendations found in the report whenreviewing their employment practices and considering whether to make changes orupdate policies. 

A summary ofsome of the notable recommendations contained include the following:

  • Employersshould ensure that the harassment prevention policy, including detailsabout how to complain of harassment and how to report observed harassment,are communicated frequently to employees, in a variety of forms andmethods.
  • Employersshould offer reporting procedures that are multi-faceted, offering a rangeof methods, multiple points-of-contact, and geographic and organizationaldiversity where possible, for an employee to report harassment.
  • Employersshould be alert for any possibility of retaliation against an employee whoreports harassment and should take steps to ensure that such retaliationdoes not occur.
  • Employersshould devote sufficient resources so that workplace investigations areprompt, objective, and thorough. Investigations should be kept asconfidential as possible, recognizing that complete confidentiality oranonymity will not always be attainable.
  • Employersshould dedicate sufficient resources to train middle-management andfirst-line supervisors on how to respond effectively to harassment thatthey observe, that is reported to them, or of which they have knowledge orinformation.
  • Employersshould consider including workplace civility training and bystanderintervention training as part of a holistic harassment prevention program.
Two of the EEOC’s recommendations are particularlynoteworthy because implementation of the recommendations could potentially putemployers at odds with the National Labor Relations Board (“NLRB”).  

Although the EEOC recommends keepinginvestigations of workplace harassment as confidential as possible, the NLRBhas, in recent years, found that directing employees not to discuss internalinvestigations could be a violation of the National Labor Relations Act(“NLRA”).  Similarly, although the EEOCrecommends that employers should include “workplace civility” training as partof anti-harassment compliance training, the NLRB has found a number of employerrules regulating conduct towards fellow employees as being in violation of theNLRA.  The EEOC apparently recognizes thetension between its recommendations for employers and the NLRB.  

Accordingly, the EEOC recommends that the EEOCand NLRBconfer, consult, and attempt to jointly clarify and harmonize the interplay ofthe NLRA and the laws the EEOC enforces with regard to the permissibleconfidentiality of workplace investigations andworkplace civility rules.   

Therefore,although it is worth considering implementing the EEOC’s recommendations, employerswould be wise to consult with competent professionals prior to making changesin policies or practices.

Author:  Darin Haller, Director of HR Compliance

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