• Stemming the Increasing Tide of Unlawful Workplace Harassment
  • August 2, 2017
  • It is undeniable that there has been a noticeable uptick in incidents of racist and xenophobic harassment across the country. While this behavior is often publicized when it occurs between civilians at the local grocery store, such incidents are increasingly prevalent in the employment context and can take place between and among all levels of employees. Harassing behavior can occur by supervisors and managers against subordinates by and between co-workers, and by nonemployees against employees.

    In 2016, charges of workplace racial and religious discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC) rose for the first time in five years. These charges often centered on allegations of harassment. Last year, harassment charges filed with the EEOC reached a seven-year high. Prompted by the dramatic increase in harassment complaints, the EEOC recently issued a 95-page report on unlawful harassment in the workplace. In the report, titled "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace," the EEOC highlighted that nearly one-third of the approximately 90,000 charges received by the EEOC in 2015 included an allegation of workplace harassment. Additionally, the report mentions a study which found that up to 60 percent of employees have experienced either racially or ethnically motivated harassment in the workplace.

    The rise of EEOC harassment charges is particularly worrisome for employers because in addition to the potential legal liability, unchecked harassment erodes workplace harmony, decreases productivity, reduces employee job satisfaction and may impair an employer's ability to retain good employees. In light of these realities, employers would do well to take all reasonable steps to help stem the tide of harassment in the workplace, and if harassment does occur, take prompt and effective steps to remediate the effects of the harassment and to prevent any further harassing behavior. The first critical step involves performing a thorough and critical review of current anti-harassment policies to ensure compliance with local, state and federal laws. Anti-harassment policies are often dense and difficult for employees to navigate. Employers should review, and if need be, revamp, their policies to ensure that they are comprehensible. In crafting or revising an anti-harassment policy employers should keep in mind that the goal of effective anti-harassment policies is to provide clear expectations of what behavior is inappropriate in the workplace. To that end, it would be helpful to include a nonexhaustive list of harassing behavior to assist employees in understanding the type of behavior that may rise to the level of unlawful harassment.

    Additionally, anti-harassment policies should specifically provide for a detailed reporting or complaint procedure. To ensure that a potential victim of harassment is not deterred from filing a report or complaint, the policy should provide for a mechanism for bypassing a harassing supervisor or other member of management. Employers should aim to provide multiple avenues for filing complaints and reports and remind employees of these avenues. To illustrate, in addition to directing employees to the human resources department, a supervisor or another member of management, employees can implement a complaint hotline, which would provide employees with an added sense of privacy and anonymity in making a report or filing a complaint.

    Once formulated, anti-harassment policies should be disseminated in a form that requires each employee to acknowledge receipt of the policy and should be made readily accessible to all employees. Employers should consider having a copy of the policy on the company's intranet or posted on a bulletin board in an area that most employees readily frequent such as the breakroom or the human resources office.

    Finally, upon knowledge of a report or complaint of harassment, employers should conduct a prompt and thorough impartial investigation.

    In addition to crafting and disseminating a clear and thorough anti-harassment policy, the following considerations, practices and policies can help employers reduce exposure to legal liability:

    • Offer customized compliance training—Training is most effective when it is tailored to fit the specific needs and business model of an organization. Consult experienced employment counsel or human resources professionals to develop training that is conducive to the needs of your organization. Consider new modes of training such as interactive bystander intervention training which encourages co-workers and supervisors to intervene or, at least report, when they witness harassment.

    • Ensure that all reporting mechanisms maintain employee confidentiality and that a thorough, protected record is maintained detailing the filing of complaints and the individuals against whom complaints are filed.

    • Treat each complaint individually. This is a particularly useful reminder when determining the appropriate remedy for a complaint. Sometimes the appropriate resolution may call for mediation between the parties. Other times, corrective action such as sensitivity training, counseling, or more severe discipline may be necessary. Employers should strive to avoid one-size-fits-all remedies and aim to craft individualized solutions that fit the facts of each dispute.

    • Prioritize impartiality in the complaint review process by ensuring that those responsible for investigating, assessing, and ultimately deciding the outcome of a complaint are not subject to the control or pressure of the parties involved in the complaint. Implementing an appeals process can also be a useful way to ensure such impartiality.

    While these measures cannot fully immunize an employer from potential legal liability, they can promote internal dispute resolution; improve employee morale and job satisfaction, and lower litigation-related costs. Employers cannot undo the heightened prejudice felt by many in today's society. They can, however, prevent the harms associated with such attitudes from adversely affecting the workplace.

    It is important to view the current climate as an opportunity to assess the efficacy of anti-harassment policies. Consult an attorney to evaluate whether the existing and proposed policies are in compliance with local, state and federal laws.