By:  Amy Epstein Gluck

About a week ago, I told you here that the U.S. Equal Employment Opportunity Commission (EEOC), the agency that enforces the federal anti-discrimination and anti-harassment laws, would host a public meeting titled “Revamping Workplace Culture to Prevent Harassment” in Washington, D.C. on October 31.

Lest you worry that I forgot to update you, I did not! I have merely been busy eating my kid’s Halloween candy since then (don’t judge) working on pressing client matters, and I wanted time to digest what I learned.

There were several witnesses who provided varied perspectives—lawyers, professors, a union officer, a CEO, and a representative from the Ya Basta campaign, night shift janitors who started their own movement to stand up to the extreme sexual harassment they experience. It was illuminating, and I learned new information. You can read all of the witness testimony here.

Final FY 2018 Sexual Harassment Statistics Are IN

The Commissioners had quite a lot to say too. We learned that the final data on filed charges of discrimination based on sexual harassment increased this year by 13.6% from fiscal year 2017, hits on the EEOC’s sexual harassment webpage doubled since the start of #MeToo in October 2017, and the EEOC filed 50% more lawsuits in FY 2018 than 2017. That is an extraordinary leap. It shows that employees who are sexual harassed are reporting much more than ever, and the EEOC is. Not. Playing.

These statistics don’t even consider the number of employees who file suit themselves, or file charges of discrimination with state human rights agencies. The EEOC only sues in a very small percentage of cases.

So, anyway, I can provide with you with what each commissioner and each witness said, but I think today, I’ll let you in on Commissioner Feldblum’s plan—her roadmap, as she termed it. Fellow lawyers will likely recognize this term from their first year of law school where professors told us how to write arguments using a roadmap.

The EEOC Roadmap to Prevent Sexual Harassment

Comm’r Feldblum proclaimed that we are at a “watershed moment” regarding sexual harassment, and she challenged whether we can leverage this moment into sustainable change. Here are the three components that comprise her roadmap for a “holistic” harassment prevention effort:

First, the organizational culture must be one that does not tolerate harassment. Leaders shape the culture. Leaders must believe authentically that harassment is wrong, not want it in the workplace, must articulate these beliefs, and hold this same expectation of others in the workplace. But of course, you might think. But, not so fast. My partner Rich Cohen’s recent research, here, indicates that not all might think this way!

Taking the organizational temperature and authentically focusing the climate on anti-harassment measures seems like a necessary first step. Especially in traditionally male dominated workplaces like firehouses or say, law firms.

Remember, we told you most recently here and here that (1) organizations that tolerate offensive behavior typically have far greater problems with sexual harassment and, (2) indeed, scientific studies show that organizational “tolerance” is the single most powerful factor in determining whether sexual harassment will occur. In fact, studies have shown that strict management norms and a climate that does not tolerate offensive behavior can inhibit harassment, even by those with a propensity toward such conduct.

As for leadership’s role in the organizational climate? Well…yeah.

We have encouraged and advised employers to establish a top-down commitment to equality, anti-discrimination, and anti-harassment. From the last several posts (here and here), we’ve seen that juries are awarding huge sums to plaintiffs whose employers have refused to take action against harassment or allowed it to continue once they knew about it.

Second Stop

The second stop on the EEOC’s roadmap is accountability. Comm’r Feldblum encourages companies to hold the folks who may be doing the harassing accountable in a fair and proportionate matter, regardless of rank or rainmaking ability. This includes holding accountable employees who fail to respond to reports of harassment and anyone who retaliates against a person who reports, corroborates, or intervenes to stop harassment.

Rich and I discussed this in Part I of our Dialogues about sexual harassment prevention:

Sexual harassment perpetuates when it is nurtured by others and continues unopposed; but rather than placing the onus solely on women to report … studies show that if men are accountable for their own actions and oppose sexism and harassment when they find it, sexual harassment is far more likely to abate. …

recently wrote about the 2017 (and 2016) LeanIn/McKinsey study, and advised employers to focus on accountability and results. Use targets to set goals for hiring, promotions, and equal pay. LeanIn and McKinsey’s study shows that employees are more likely to believe they have equal opportunities and are more engaged when their leaders are held accountable for improving gender diversity, engage in more objective (and therefore fair) means of hiring and promoting, and create a more inclusive environment. Remember, we’re creating a “top-down” culture of respect and parity.”

And in Part III, the Finale, when Rich said, “No “enabling. If you see something say something. This may be the most important tip for the majority of readers.” I responded that this is a pivotal point but that I would expand on this idea substantially because so many women don’t report harassment. They fear being branded as “difficult,” not believed, and not being a “team player” (of course) — subtle retaliation. Reporting is protected by law as the Opposition Clause in Title VII protects opposition to reporting harassment or discrimination.

Third Point

The third point Comm’r Feldblum outlines is that policies, procedures, and training must round out the first two points to create a comprehensive, holistic sexual harassment prevention effort.

On this score, my tune has not changed since Sexual Harassment Prevention 101.

  • Have a clear, no-tolerance sexual harassment policy in your employee handbook that discusses specific misconduct and examples, i.e., no sexual or sexist jokes, sexual puns, sexual innuendo, smacks on the butt, grabbing of any body parts, quid pro quo harassment (and what that means), or pictures of half-naked women at work.
  • Ensure your anti-harassment and anti-discrimination policies are disseminated (and updated) throughout your company and understood by all of your employees.
  • In that same employee handbook, provide a written procedure for reporting and thoroughly investigating claims of unlawful harassment and follow the procedure, extensively documenting the process along the way.
  • If you are investigating misconduct, continue to follow up with the individual who reported the harassment—whether you found that it occurred or not—to ensure they feel safe and that they are not being retaliated against; again, document all findings.
  • Take swift and decisive corrective action to prevent such conduct. That may mean suspending or terminating the perpetrator. Once your company is aware that sexual harassment likely occurred, you are complicit if you fail to take investigate and/or take corrective action. Have clear standards for discipline.
  • Utilize your Human Resources Department. They are your front-line defense for an unlawful harassment claim.
  • We already discussed encouraging reporting and maintaining a top-down culture prohibiting unlawful harassment; and, finally,
  • Provide regular, interactive, professional training to employees and managers tailored to your workplace so that they can recognize, respond to, and prevent unlawful harassment (based on sex, race, age, etc.) A “one size fits all” approach to training is generally ineffective. Further, training must be promoted by senior leaders to show commitment.

More?

I’d say there should be a fourth point on this roadmap, a IV., if you will: diversity and inclusion.

#MeToo is just getting started, y’all. Thousands of employees from one of the biggest companies in the country walked out of work last week in a coordinated protest against sexual harassment in the workplace.

The EEOC has a plan and is working harder than ever to execute it.