The EEOC Compares Harassment Prevention to Crime Prevention

By Fiona W. Ong - Shawe Rosenthal LLP

June 20, 2018

I was perusing the Equal Employment Opportunity Commission’s recently released Volume 2 of its 2018 Federal Digest of Equal Employment Opportunity Law (yes, I know I need some better hobbies), and noticed an article entitled, “Assessing Workplace Harassment Prevention Methods Through Comparisons With Similar Crime Prevention Strategies.” The article posits that “[b]y comparing harassment prevention strategies to similar crime prevention efforts, for which empirical research already exists, the EEOC hopes to identify useful tools for preventing workplace harassment.” Well, that struck me as an interesting, if somewhat questionable, approach. But let’s look at what the EEOC says.

The article first draws analogies between crime and harassment. According to the author, there are similar risk factors, such as “isolated potential victims, unbalanced power dynamics, and cultures tolerant of uncivil and deviant behaviors,” while noting that the bases of workplace harassment are the same as FBI-defined hate crimes. The author also identifies similar consequences, such as the failure to report, and the risk of financial and health (both physical and psychological) problems for the victim, as well as co-worker/friend/family fears of victimization. In addition, the author states that workplaces and communities “suffer similar costs”: costs on the workplace include monies paid to victims, attorneys’ fees, and time lost in dealing with harassment claims, while costs on the community include “the costs of resources used to fight crime, opportunity costs of victims and perpetrators, life and health costs, and lost money and property.” (Frankly, I found the analogy to be rather a stretch, but ok, I’m going with it for now….)

The article then turns to the proposition of primary prevention – to stop harassment or crime from taking place in the first place. With regard to harassment, the author points to the EEOC’s Report of the Select Task Force on Harassment, which suggests workplace civility training as a preventive measure. Acknowledging the lack of research to establish the efficacy of such training, the author then turns to the “broken window policing” model, which focuses on police prevention of smaller disorders to prevent more serious crime. Apparently the research, which examined different forms of broken window policing, shows that problem-solving policing resulted in a modest reduction in crime rates, but that aggressive targeting of disruptive individuals did not deter crime. Thus, the EEOC suggests that managers “should use methods that focus on specific minor, but persistent, problems and incorporate methods that foster cooperation within the organization, rather than strict enforcement against the individual.” (Um, I actually think that, if an employer knows there is an individual engaging in bad behaviors, the employer better be addressing those behaviors specifically. I’m quite sure that the enforcement arm of the EEOC would agree.)

Next, the article turns to bystander intervention training in order to raise bystanders’ awareness and sense of collective responsibility, and provide them with the confidence and resources to support intervention. Apparently research on bystander training to prevent criminal sexual assault showed that training participants were more likely to intervene. OK, that’s good – and may be helpful with certain forms of harassment, like inappropriate comments or jokes. But then the article further states, “research has shown that attempted rape is less likely to be completed when bystanders are present.” I need a moment here to reflect on the utter ridiculousness of that statement. Rape is not usually perpetrated in front of uninvolved observers. And neither are the most egregious and physical forms of sexual harassment. It is a necessary part of these offenses that they happen when no one else is around. But at least the author acknowledges that “workers are still at risk of harassment when bystanders are not present.”

Then, the article proposes that potential harassers may avoid harassing behaviors if they know that they will face swift and proportionate punishment. The author cites to the “rational choice” theory, as subscribed to by certain criminologists, who believe that rational potential offenders will weigh the benefits and risks of criminal activity, and will engage in the behavior if there is no punishment. In addition, some of those rational choice theorists suggest that if the punishment is the same for a lesser and a greater crime, the offender will choose the greater crime. Thus, to deter the more significant crime or harassment, the punishment must be proportionate. But what the article ignores are the significant number of studies that have shown that criminals are not rational thinkers, and that punishment will not necessarily deter future crime. After all, most criminals don’t think they will be caught. Now, I actually believe that an employer who makes clear that harassment will not be tolerated and will be punished, and then consistently and firmly enforces that position, will deter most harassment in the workplace. (Probably not all – there are some harassers that also are not rational thinkers, and who don’t think they’ll get caught). It’s just that I don’t think the reference to criminal rational choice theory is all that useful.

The article also suggests that effective monitoring and reporting systems are essential to crime deterrence, and therefore likely harassment prevention. OK, that makes sense.

Finally, the article suggests “alternatives to conventional punishment for harassment and crime.” It states that conventional punishments may not always be the most effective approach, and suggests the alternative of “restorative justice.” This approach uses techniques such as meetings or alternative dispute resolution (ADR) between the offender, victim, and other stakeholders, which allegedly can help offenders “to redefine their criminal actions as morally wrong and to redefine themselves as law-abiders who do not want to repeat their immoral behavior.” Interesting. Sort of a variation on the “let’s all sit down together and work it out” approach. As experienced HR professionals know – sometimes that works, and sometimes it makes things worse. In addition, a victimized employee who feels forced to sit down with their alleged harasser could actually claim that the meeting was additional harassment or retaliation by the employer.

So, after thinking through this article, I feel like the EEOC was reaaaaaaally stretching to make the points that it wants to make: that workplace civility training, bystander training, clear and swift punishment, effective monitoring and reporting systems, and alternative remedial measures can all help in preventing and addressing harassment in the workplace. I agree that these steps could be (more or less) helpful, but I am skeptical that the analogy to crime prevention strategies was really a valid one. And I fear that the EEOC weakens its position by such an tenuous comparison.