If you haven’t taken your organizational temperature related to workplace harassment, you might just want to do that now. If news headlines are any barometer, there seems to be a lot of harassment going around. The good news is that EEOC has issued helpful guidance, including some tools and resources to help you stay out of the courtroom.
Less than a year after Roger Ailes and Fox News Channel parted ways due to numerous allegations of sexual harassment levied against the former Chairman, another key network figure, opinion news show host Bill O’Reilly, was also forced out when similar charges made his position untenable at the network. It’s curious that in the bright media spotlight accompanying the charges against Ailes, nothing surfaced publicly about the O’Reilly charges at that time. Or maybe not so curious. Yuki Noguchi talks about how deeply the roots of harassment can run in organizations in her recent NPR article: Fox News Turmoil Highlights Workplace Culture’s Role In Sexual Harassment. She cites several examples of workplaces where harassment permeated the work culture, sometimes lingering for decades. How’s the health of your organization’s work culture in terms of harassment – have you taken the temperature lately? It’s easy to think “it can’t happen here’ – until it does.
With all the recent headlines, it’s important for employers to dispel the misconception that harassment is synonymous with sexual offenses. There are many more forms of workplace harassment that can create a hostile workplace than those of a sexual nature. Harassment as defined by the Equal Employment Opportunity Commission (EEOC) includes:
Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment against individuals in retaliation for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or lawsuit under these laws; or opposing employment practices that they reasonably believe discriminate against individuals, in violation of these laws.
Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality. To be unlawful, the conduct must create a work environment that would be intimidating, hostile, or offensive to reasonable people.
These recent cases offer an object lesson for employers – it’s a good time to dust off policies and take inventory of your organization’s work culture in terms of EEOC’s guidance on harassment.
In a recent article in HR Morning, Tim Gould notes that “Workplace harassment is virtually an epidemic these days — the EEOC says a third of the nearly 100,000 charges it receives annually now include a harassment allegation.” The article reminds us that last year, the EEOC outlined 4 new approaches to fight workplace harassment, and offered several tools for employers. Gould helpfully summarizes some key advice from the EEOC’s 2016 report and recommendations from the Select Task Force on the Study of Harassment in the Workplace in these four key areas:
- Leadership & Accountability
- Anti-Harassment Policy
- Harassment Reporting System and Investigations
- Compliance Training
You can also access the employer checklists directly.
One other area of guidance that we found helpful in the EEOC report were the Risk Factors for Harassment – a list of 12 common risk characteristics and their definitions. EEOC also provides a Chart of Risk Factors & Responses. Here’s an outline of those risk factors:
- Homogeneous workforces
- Workplaces where some workers do not conform to workplace norms
- Cultural and language differences in the workplace
- Coarsened social discourse outside the workplace
- Workforces with many young workers
- Workplace with “high value” employees
- Workplaces with significant power disparities
- Workplaces that rely on customer service or customer satisfaction
- Workplaces where work is monotonous or consists of low-intensity tasks
- Isolated workspaces
- Workplace cultures that tolerate or encourage alcohol consumption
- Decentralized workplaces
It’s also important for employers to remember that harassment charges are not simply levied against senior executives and managers. That’s another common misconception. EEOC says that:
• The harasser can be the victim’s supervisor, a supervisor in another area, an agent of the employer, a co-worker, or a non-employee.
• The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
• Unlawful harassment may occur without economic injury to, or discharge of, the victim.
Related – see our prior post: Lessons on sexual harassment from the EEOC and the news headlines
As part of ESI’s Management Academy (PDF), we offer a suite of training resources to all our EAP clients,including Discrimination and Harassment training geared for both Supervisors and for Employees. If you are a current client, login to your Member site to access online training 24/7. If you are not a client, but would like to learn more, contact ESI here.