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It has been thirty years since the U.S. Supreme Court held that workplace harassment is an actionable form of illegal discrimination in the landmark case, Meritor Savings Bank v. Vinson. The U.S. Equal Employment Opportunity Commission (“EEOC”) is the agency charged with enforcing federal workplace discrimination laws, including harassment. Since 2010, employers going through the EEOC’s pre-litigation administrative process have paid out an astonishing $698.7 million to employees alleging harassment. This figure represents just a small percentage of the direct and indirect costs to employers due to workplace harassment.
In June 2016, the EEOC released a report on the study of harassment in the workplace which roughly coincided with the thirty year anniversary of the Vinson case. Employers should consider the information and recommendations found in the report when reviewing their employment practices and considering whether to make changes or update policies.
A summary of some of the notable recommendations contained include the following:
- Employers should ensure that the harassment prevention policy, including details about how to complain of harassment and how to report observed harassment, are communicated frequently to employees, in a variety of forms and methods.
- Employers should offer reporting procedures that are multi-faceted, offering a range of methods, multiple points-of-contact, and geographic and organizational diversity where possible, for an employee to report harassment.
- Employers should be alert for any possibility of retaliation against an employee who reports harassment and should take steps to ensure that such retaliation does not occur.
- Employers should devote sufficient resources so that workplace investigations are prompt, objective, and thorough. Investigations should be kept as confidential as possible, recognizing that complete confidentiality or anonymity will not always be attainable.
- Employers should dedicate sufficient resources to train middle-management and first-line supervisors on how to respond effectively to harassment that they observe, that is reported to them, or of which they have knowledge or information.
- Employers should consider including workplace civility training and bystander intervention training as part of a holistic harassment prevention program.
Two of the EEOC’s recommendations are particularly noteworthy because implementation of the recommendations could potentially put employers at odds with the National Labor Relations Board (“NLRB”). Although the EEOC recommends keeping investigations of workplace harassment as confidential as possible, the NLRB has, in recent years, found that directing employees not to discuss internal investigations could be a violation of the National Labor Relations Act (“NLRA”). Similarly, although the EEOC recommends that employers should include “workplace civility” training as part of anti-harassment compliance training, the NLRB has found a number of employer rules regulating conduct towards fellow employees as being in violation of the NLRA. The EEOC apparently recognizes the tension between its recommendations for employers and the NLRB. Accordingly, the EEOC recommends that the EEOC and NLRB confer, consult, and attempt to jointly clarify and harmonize the interplay of the NLRA and the laws the EEOC enforces with regard to the permissible confidentiality of workplace investigations and workplace civility rules. Therefore, although it is worth considering implementing the EEOC’s recommendations, employers would be wise to consult with competent professionals prior to making changes in policies or practices.
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