EEOC Assesses Root Cause of Workplace Harassment

By Lehr Middlebrooks Vreeland & Thompson, P.C.

November 30, 2018

For the past three years, the EEOC has had a Task Force which focused on the causes and  remedies for workplace harassment. The Task Force conducted its work through public testimony and consultation with employee and employer advocacy groups, unions, and academics. Earlier this month, the EEOC issued its report identifying what it considers to be the primary root cause reasons resulting in some form of workplace harassment, not just sexual:

1. Workplaces which lack diversity. In such work environments, an employee who is  “diverse”  may be more susceptible to harassment.

2. “Silos” of employees based upon culture or language differences.  In these situations, the EEOC says that there is a greater risk of tension or harassment between groups unless employers are proactive in the culture they establish and policies they communicate.
 
3. The issue of persons with power.  According to the EEOC, recipients of harassment are less likely to report the behavior of individuals who are in a position of power either based upon job responsibilities or achievement and recognition.

The concern among those who fail to report inappropriate behavior of a high-powered, high value employee is the belief that the company will do nothing about it or there will be retaliation because of the importance of the harasser to the organization.

4. Offices and shifts that are more remote from the leadership team. If there is not a supervisor or regular management presence at a particular office of shift, employees may become easier  targets for potential harassers.  

5. Boring work. The EEOC stated that where work is repetitive, routine and “mindless,” individuals may engage in inappropriate behavior to deal with the monotony or the frustration of feeling stuck in that type of a job.  

6. Alcohol. The EEOC Task Force concluded that alcohol may reduce social inhibition and impair judgment – what revelations! However, the EEOC has a point here, which is that where alcohol  is  served, there is a heightened risk of individuals behaving inappropriately.

7. What occurs “outside that window” that is brought to the workplace. The political environment is highly charged with issues about immigration, the Justice Kavanaugh hearings, and the actions  of law enforcement in minority communities. The EEOC stated that employees in the workforce may look at what occurs outside that window as acceptable attitudes and behaviors, and thus engage in those at work.

8. Teenage and young adult employees. The EEOC stated that these individuals may be more vulnerable to harassment; they may be targets due to their inherent susceptibility, particularly  where a harasser is either a long-term or a “high value” employee. Individuals in this age group  are less likely to take advantage of internal reporting process, because they are not confident in knowing what to do.

9. When employees rely on customer satisfaction or approval. We had a situation with a government contractor, where there was inappropriate behavior by the government contract monitor toward our client’s employees. That monitor was in a position of great power, as he (and it was a he in this case) made a recommendation about whether or not our client met its contractual  obligations, and therefore, could be paid. Fortunately, the inappropriate behavior was immediately   reported and we developed an approach for our client to continue the relationship with the customer and report the monitor. Employees whose role involves direct contact with a customer or a client may be less likely to report the behavior. Stress to those employees that not only is the  customer not always right, but in fact the customer may not always remain the customer.

In light of the EEOC’s observations, the Commission offers the following recommendations, in addition to the obvious ones of proper policy implementation, communication and training:

1. Be attentive to potential segregation at the workplace.  Do individuals of the same national origin or race break together; is there interaction among protected classes and different age groups?

2. Be sure that employees on all shifts and at all locations receive the same high level of communication about what is acceptable and unacceptable workplace behavior and how to report the latter. Do more than just hand out policies. Talk about it. Give examples. Hold those in managerial and other leadership positions to a higher level  of  accountability, not only for their own behavior, but also for reporting any inappropriate behavior.

Much of the EEOC’s emphasis is on awareness, training,and  reporting  processes. We suggest  in addition to  that,  differences should be appreciated  not with the emphasis exclusively on “sensitivity training,” but also through cultural experiences. Examples include music, food, even sporting events where the sport of interest to some is not “mainstream”  in the U.S., such as  soccer. Furthermore, employers have the right  to consider how employees behave away from work, and this includes what is posted on social media. Thus, if an employer is aware that  an  employee away from work engaged in behavior which could  potentially be harassment, hostile, or conflict with the organization’s values, you have the right to act and should do so.