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NEW YEAR’S RESOLUTIONS: THE EEOC’S FOCUS ON WORKPLACE HARASSMENT IN 2015

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As the calendar rolls over into a new year, many of us are busy making resolutions, and it seems that certain government enforcement agencies are no different.  On January 14, 2015, the EEOC held its first meeting of the new year, resolving to renew its focus on the issue of workplace harassment.  During the meeting, new EEOC Chair Jenny Yang announced the creation of a brand new task force dedicated solely to harassment issues, with the goal of reaching out to both employees and employers to promote rights awareness and best employment practices.

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So why this New Year’s resolution?  According to Ms. Yang, workplace harassment allegations comprise nearly one-third of all charges filed with the EEOC.  The serious impact that harassment can have on employees (and thus on employers through the inevitable litigation) was illustrated by testimony from a trial attorney in the EEOC’s Denver, CO field office who litigated a harassment and retaliation case against an oil and gas company.  In that case, the minority employees who worked on gas wells were subjected to derogatory comments regarding green cards and deportation, while patch-job repairs were described using a slur against African-Americans.  The harassment continued even after reporting, as the on-site supervisor responded by merely telling the employees they were free to quit.  Several employees were later fired.  As for the employer, it agreed to settle the case for $1.2 million.  Possibly, this is an outlier case, but nevertheless a cautionary one — especially for employers with a large blue-collar workforce.

Workplace harassment issues are by no means limited to race or ethnicity.  According to a recent survey presented during the EEOC meeting, fully 25% of working women have experienced some kind of sexual harassment in the workplace, ranging anywhere from inappropriate remarks to actual rape in the field – yet 70% of those women say they have never reported it for fear of retaliation.  This is an alarming statistic, especially given that women now comprise 47% of the nation’s workforce, an all-time high.  By the same token, it is important not to naively narrow the view of sexual harassment victims solely to women, as the EEOC reported that 18%, or nearly one-fifth, of sexual harassment charges are filed by men.

A burgeoning focus for the EEOC’s new task force (and thus, employers should take note) will be analyzing the rapid rise of technology and social media.  One of the EEOC’s first high-profile cases involving technology began in 2006 when an assistant manager sexually harassed a subordinate via text message.  The facts snowballed from there, ultimately leading to a $2.3 million settlement.  More recent charges illustrated during the meeting have involved employee blogs, Twitter feeds, and Facebook posts.  As similar charges are destined to become more and more common, this relatively new and uncertain ground will be fraught with traps for the unwary employer.

So what resolutions can you, the employer, make in the new year to avoid becoming one of the cautionary tales discussed during the EEOC meeting?  As Benjamin Franklin once (allegedly) said, “an ounce of prevention is worth a pound of cure” and litigation is no different.  Many of the EEOC panelists agreed that thorough awareness and training at all levels of employment and management is the key to prevention over a pound of expensive cure.  Start 2015 on the right foot and resolve to review your company’s anti-harassment policies and reporting procedures to ensure they are in line with Title VII and your state’s civil rights statutes.  Then communicate those policies to your employees, new and long-term, in a way they will understand.  Take special care to ensure that management personnel and supervisors are reminded of their responsibilities.  As always, consult competent employment counsel to avoid any legal missteps which might spoil your Happy New Year.

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