The War Against Harassment

Harassment in the workplace undermines an employer’s ability to carry out its mission. Combating workplace harassment remains a top priority for all employers.

The U.S. armed forces have been at the forefront of this war in 2013. Secretary of Defense Chuck Hagel has attacked this issue head on, saying, “We need a culture of change, where every service member is treated with dignity and respect, where all allegations of inappropriate behavior are treated with seriousness, where victims’ privacy is protected, where bystanders are motivated to intervene and where offenders know that they will be held accountable by strong and effective systems of justice.”

Likewise and consistent with its strategic enforcement plan, the Equal Employment Opportunity Commission, or EEOC, has renewed its battle against harassment in the workplace. This year, it has filed a series of sweeping harassment lawsuits around the country. The harassment cases filed reflect the commission’s focus on protecting “vulnerable workers and underserved communities.” For example, the EEOC has aggressively pursued new and existing cases in a variety of industries, noting:

“Unfortunately, we continue to see cases involving employees who suffer sexual exploitation at the hands of their bosses … All workers are entitled to a workplace that is free of harassment and discrimination, and employers should think twice before assuming that vulnerable workers will not exercise their rights due to fear or the lack of understanding.”

This year, the EEOC also has brought harassment lawsuits against employers across a wide range of industries, including hospitality, retail, energy and health care. Some of these companies are among the largest in the country. The 2013 litigation trends are a direct outgrowth of the commission’s stated goal to aggressively attack harassment involving groups that it has called “underserved” — young, immigrant, uneducated or non-English speaking employees.

This goal was affirmed in May when an Iowa jury returned a $240 million verdict, the largest ever in the EEOC’s history, on a case alleging severe abuse of workers with intellectual disabilities. The alleged abuses included frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” These employees testified about physical abuse, too, including hitting, kicking, at least one case of handcuffing and physical punishment.

Many employers may be too quick to assume their company would never face a case like that. This would be a mistake. All it takes is one rogue employee to create a hostile work environment.

Companies large and insightful enough to employ diversity executives typically stymie the rogue employees with state-of-the-art policies that require an investigation of reported workplace harassment or discrimination. Such policies must periodically be reviewed, refined and improved. Effective policies can help to avoid employer liability and work toward the goal of discrimination-free workplaces. Such policies should identify numerous people to whom employees can report alleged harassment. Robust, effective policies will make a company a less desirable target for the EEOC.

Having an effective policy, however, is only part of the picture. Companies must confirm that the policy and all of the attendant practices are actually being observed in the field. Several recent EEOC cases have focused on employers with proper policies, but whose policies and practices broke down. A privileged review of employee complaints — internal and external — is one way to identify whether there are known, existing barriers to effective policy implementation.

One of the best ways to ensure compliance is training for employees — management and non-management. Training content should cover not just the policies, but also how to report potential violations of the policies. In addition, it should consider assessing whether there are any barriers to associates utilizing such procedures.

In the almost 50 years since Title VII — which prohibits employment discrimination based on race, color, religion, sex and national origin — was enacted, workplace conduct has changed dramatically. There is no doubt that the workplace in 2013 is far more civilized and professional. But better is not good enough. Employers must continue to protect employees from hostile and abusive work environments.