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:
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.