The latest headlines confirm the 2016 findings published by the Equal Employment Opportunity Commission (EEOC) that workplace harassment too often goes unreported. The EEOC reports that “approximately 70% of the individuals who experienced harassment never even talked with a supervisor or manager,” meaning that they didn’t report it to their employer. The EEOC found the most common response of any employee who experienced sexual harassment was not to report it but to avoid the harasser, or ignore or attempt to forget the behavior. The reason for not reporting it was that the victim feared they would not be believed, they would be blamed or ostracized, or that they would be retaliated against.
As an “employer’s lawyer” I am often faced with advising clients when these claims are made under an anti-harassment and non-discrimination policy. The victim’s concerns about reporting are legitimate – historically those feared reactions to a sexual harassment report have often borne fruit. Over the years, I believe employers have become much more sensitive to this issue. However, even the most diligent employers on this issue often find themselves noncompliant with Title VII, the law that applies to any employee’s claim of harassment or discrimination. I continue to be surprised that there are many employers who don’t know if they are subject to this law, don’t have a policy prohibiting harassment or discrimination, and don’t follow the EEOC’s guidance as to the specific investigation that has to be performed. So in the wake of all of the press on sexual harassment, it is a good time to take stock of your compliance practices.
Here are some helpful things to keep in mind:
- Title VII is applicable to employers with 15 or more employees.
- Title VII requires employers to have a written anti-harassment, anti-discrimination policy with two or more avenues for reporting.
- The policy must not only reference sexual harassment, but all forms of harassment.
- The policy must define what is illegal harassment and discrimination.
- An employer must respond to any complaints under the policy, whether verbal or written.
- An employer must perform a very specific investigation outlined by the EEOC and the investigation must be timely.
- An employer must then take any discipline that the investigation’s outcome requires.
- An employer must then communicate the outcome of the investigation to the employee, although the employer need not tell of the specific discipline if discipline is imposed.
- An employer must then follow up with the victim to make sure retaliation is not occurring whether or not the underlying investigation resulted in a finding that harassment or discrimination occurred.
- Retaliation can take many forms.
- During an investigation, an employer should not change any terms or conditions of the alleged victim’s employment or relocate the victim to make the victim more comfortable – only the alleged offender can be moved or sent out on administrative leave.
These thoughts spring from my observations over the years to the current day regarding employers’ policies and practices. The Fourth Circuit Court of Appeals, our jurisdiction, will not enforce a policy if it is not effective and the steps above are required for an employer to argue its policy is effective. It is not sufficient to merely have the policy.
Additionally, it is crucial that the leaders in an employer’s organization set the example. Off-color jokes should be prohibited and certainly should not be made by those in charge. Offenders should be dealt with swiftly. Supervisors and leaders truly are held to a higher standard of behavior in the workplace because they set the example. So often employers don’t wish to take any action towards the offender because the offender is so integral to the organization’s success. However, that is exactly the type of situation that creates the possibility for vulnerability on this front as we are seeing in the news today. If employers wish to avoid liability in cases of this nature, they must follow the process diligently and timely, and not be afraid to take discipline when it is required, no matter whom the alleged offender is.