Last week, the EEOC released preliminary data on sexual harassment claims for its 2018 fiscal year. The report (not surprisingly) shows an eye-popping rise in sexual harassment claims and enforcement activity – a trend acting EEOC chair Victoria Lipnic anticipates will continue for a while.
Even for employers not affected by New York and New York City’s sweeping sexual harassment prevention laws, or other new state or local laws, the EEOC report underscores the need for HR departments to shore up their discrimination and harassment prevention programs now.
SEXUAL HARASSMENT ENFORCEMENT BY THE NUMBERS
Here is what the EEOC reports:
- Sexual harassment charges with the EEOC increased by more than 12% from last year. This is the first time in a decade that the EEOC had an increase in annual sexual harassment complaints from the year prior.
- Sexual harassment lawsuits filed by the EEOC’s attorneys – 41 in 2018 – increased by 50% from the previous year.
- Reasonable cause findings in sexual harassment cases increased from 970 to nearly 1,200, an increase of over 23%.
- Successful conciliation proceedings (a formalized mediation process run by the EEOC) jumped from 348 to nearly 500, a 43% increase.
- Monetary awards recovered for the victims of sexual harassment rose to $70 million, an increase of over 22% from last year’s recovery.
- The public’s interest in the EEOC’s sexual harassment enforcement efforts also appears to have increased: the EEOC reported that visits to its sexual harassment website page more than doubled compared to last year.
WHAT YOU CAN DO TO AVOID BECOMING AN EEOC STATISTIC
The saying “There’s no such thing as bad publicity” wasn’t coined when sexual harassment scandals spread faster than hyperloop technology. Here are some ways to stay out of the (unwanted) spotlight and transform your workplace culture for the better:
Draft Policies in Plain English
- Eliminate unclear legalese.
- Define sexual harassment and then clearly give examples of behaviors you want to discourage (e.g., off-color jokes, touching, ogling, sharing pornography, etc.).
- Clarify that these standards apply both in and out of the workplace.
- Must apply to all communications – verbal and through technology (e.g., texts, emails.).
- Encourage immediate reporting and provide numerous avenues for reporting.
- All roads should consistently lead back to HR.
- Avoid or reconsider “zero tolerance” language in your policy.
- This language could be misunderstood by employees to mean that every infraction could result in termination.
- Reassure employees that retaliation for making a claim or participating in an investigation of harassment is prohibited.
Prepare Your Environment For Success
- Make sure to distribute your sexual harassment policy to new hires, train them at orientation and collect a signed acknowledgement.
- Post required notices, redistribute your policy annually and provide annual refresher training.
- Message from the top by having your organization’s highest official distribute the policy from their email or issue a statement of support for your program in an all-employee memo.
- Support and communicate with your managers.
- Managers who are treated as part of the “solution” will be better ambassadors for any culture change project than those left in the dark.
- Communicate with managers about plans for sexual harassment training for employees, what you are trying to accomplish and how they can help reinforce key messages.
- Provide special sexual harassment training for managers, focusing on the responsibilities and challenges unique to managers.
- Integrate sexual harassment prevention into HR initiatives geared toward employee career success.
- Consider conditioning high performance evaluation scores, promotions, merit increases and bonuses, on employees’ adherence to your sexual harassment policy and completion of training.
Educate (and Reeducate) Your Employees on Sexual Harassment Prevention
- Ensure employees have access to your policy, notices, contact information and complaint forms.
- Conduct interactive annual training that exceeds legal requirements and encourages a respectful, civil, empathetic workforce.
- Sensitize employees that actions can be perceived differently by other people.
- Dramatize examples of sexual harassment and reinforce expectations, procedures and discipline policies.
- Reaffirm your intolerance for retaliation and provide recognizable examples.
- Explain and encourage bystander intervention techniques:
- Teaching employees how to assertively say “that comment to Jane was inappropriate” can quash questionable conduct from escalating.
- Consider bringing in an outside consultant, law firm, or vendor to conduct training among your workforce:
- Having an external “authority” reinforce your HR policies can be an effective way to demonstrate your company’s commitment to this topic.
- Educate non-employees, clients, independent contractors and vendors about your workplace expectations.
- In some states independent contractors can bring claims for sexual harassment they experience.
Follow Through and Consistently Enforce Your Policy
- Make sure you have solid investigation supports in place.
- HR staff need training and sufficient bandwidth to competently and quickly respond to claims.
- Consider outsourcing investigations to legal counsel or outside investigators where an investigation involves the risk of compromising the integrity of your HR staff, or involves high profile claims or senior executives.
- When you receive a complaint, investigate it seriously, promptly and thoroughly and communicate the results appropriately.
- Failing to follow your own policy, or following it inconsistency, will lead to low morale, turnover and underreporting of allegations.
- Once your investigation is complete, record and report the results appropriately.
- If the allegations are substantiated, you need to take action.
- Inconsistent application of discipline to similar behavior not only arouses employee suspicion, but could lead to legal liability.
- An appropriate corrective action is one sufficient to ensure that the behavior is not reasonably likely to occur again.
While there is no magic bullet to completely avoid sexual harassment claims, there are ways to prepare your organization to better address the growing public sensitivity around these kinds of claims. Use the momentum inspired by #MeToo supporters to galvanize real cultural change in your organization. Through thoughtful planning and consistent execution, you can transform every allegation of harassment into an opportunity to earn your employees’ trust.
If you have questions or need help, we encourage you to contact Barbara Hoey, Mark Konkel or any attorney in our Employment Group.