- The Keys to Harassment Prevention: An Interview With EEOC Commissioner Chai Feldblum
- September 1, 2016
- Law Firm: Ogletree Deakins Nash Smoak Stewart P.C. - Greenville Office
Chai Feldblum is a Commissioner of the U.S. Equal Employment Opportunity Commission (EEOC). She co-chaired the EEOC Select Task Force on the Study of Harassment in the Workplace, and produced a report in June of 2016, together with Commissioner Victoria Lipnic, that drew on the work of the task force.
JATHAN JANOVE: What prompted your agency to create a task force to study workplace harassment?
CHAI FELDBLUM: After I joined the commission in 2010, I was astonished to learn how prevalent harassment still was in the U.S. workplace-not only sexual harassment, but also harassment based on race, religion, and other protected characteristics. Commissioner Lipnic had the same reaction. Commission Chair Jenny Yang asked us to co-chair a task force and conduct an in-depth study of the problem.
JANOVE: Describe the makeup of your task force.
FELDBLUM: Its 16 members were highly diverse. We had employee-side attorneys, management attorneys, employer association representatives, and academics who’ve researched the issue.
JANOVE: What are your salient findings?
FELDBLUM: There are three:
- Despite more than 30 years of anti-harassment training, policies, and procedures, workplace harassment remains a persistent problem. One-third of the charges we receive at the EEOC allege harassment, amounting to 163,000 charges over the past 5 years.
- Despite the plethora of claims, most harassment doesn’t get reported. Our research indicates that at least 85 percent of harassment cases never result in a claim being filed. Even more disturbing, 70 percent don’t even result in internal action. The overwhelming majority of situations remain unknown to the employer. Due to fear of retaliation or other reasons, employees don’t take action other than avoidance, tolerance, or complaining to family and friends. Regarding just sexual harassment, conservative estimates are that 25 percent of working women say they have been sexually harassed, 40 percent have experienced unwelcome sexual conduct, and 60 percent have experienced either unwelcome sexual conduct or sexist conduct.
- There’s a compelling business case for stopping workplace harassment. There’s the direct economic cost. Over the past 5 years, the EEOC has collected over $700 million for complainants in just the pre-litigation stage. Last year, we collected $140 million pre-litigation and $40 million in litigation. And this is just our agency. But there’s also the indirect financial costs, which are even higher-negative impact on retention, productivity, morale, and physical and psychological harm not only to the targets of harassment but also coworkers who witness or learn about the harassing behavior.
- It starts at the top. Company leaders have to demonstrate, in both their communications and personal actions, that a healthy, harassment-free workplace is a core value for the organization. Employees must believe their leaders are authentic in that commitment, which requires that company leaders hold employees accountable to that goal.
- In enforcement, instead of “zero-tolerance,” in which all conduct gets the same remedy, focus on swift, effective, and proportionate remedial action. Be consistent-don’t look the other way when it’s the “Superstar Harasser.” Hold supervisors and managers accountable for how they respond to complaints or observations of harassment regarding their employees.
- Do a climate survey. In an anonymous, confidential, and secure manner, ask employees if they’ve experienced conduct that’s made them uncomfortable. Don’t ask, “Have you been harassed?” Ask if they’ve experienced unwelcome conduct such as off-color jokes, racial stereotypes, religious put-downs, etc. Also, ask questions regarding how comfortable they feel reporting problems to management or human resources.
FELDBLUM: We found very limited empirical evidence that anti-harassment training has been effective. However, the solution is NOT to eliminate training. Rather, it’s that training shouldn’t be done in a vacuum. It should augment leadership commitment and accountability. Also, its purpose shouldn’t be to create a defense against a legal claim. It should be to create a workplace where employees feel safe, secure, and respected.
JANOVE: What should such training cover?
FELDBLUM: The basic type of training is what we call “compliance training.” But this training is not just about compliance with the law. It’s about teaching employees to comply with rules regarding unacceptable behavior in the workplace, regardless of whether that behavior would legally constitute “harassment.” This training also doesn’t focus on changing employees’ beliefs; it focuses on changing their behavior. Once behavior changes, culture can change as well.
We also identified two other types of training that might be helpful in changing workplace culture. The first is designed to create a culture rooted in civility. It trains employees on the kinds of behavior that foster a civil, respectful, and dignified workplace, without regard to any protected characteristic under the law. The second type is bystander intervention training. This would teach employees what they can do to prevent or help correct offensive behavior, even if they are not in management or human resources and do not have a responsibility to intervene.
JANOVE: What do you recommend as employers’ next steps?
FELDBLUM: If you don’t have time to read all 95 pages of the report, I recommend that you read the executive summary. Print out, laminate, and apply the four checklists in Appendix B. Conduct a risk assessment using the 12 factors listed in Appendix C. Finally, do a confidential climate survey to get a real sense of how your workplace is doing.
JANOVE: What’s next for your task force?
FELDBLUM: The task force completed its work in June of 2016. The next step is to implement the recommendations of the report. A number of task force members have told us they want to stay involved in that effort as individuals. We need to get the word out about leadership, accountability, training, and bystander intervention.