Recently the EEOC requested public feedback on their proposed enforcement guidance addressing unlawful harassment under the federal employment discrimination laws. Below is the submission for the National Workplace Bullying Coalition:
We are extremely pleased to see that the EEOC has recognized the very serious on-going issue with workplace harassment. Furthermore, we are very pleased to see that the EEOC has taken the step to update the enforcement guidance to address workplace harassment and to combine many of the various employer guides on harassment into one document. For many progressive employers this will help them to more effectively prevent, detect and eliminate harassment and other employers will have no excuse for failing to follow suit. This enforcement guidance is an outstanding follow-up to the Report of Co-Chairs Chai R. Feldblum and Victoria Lipnic on the Select Task Force on the Study of Harassment in the Workplace published in June of last year. Commissioners Feldblum and Lipnic along with EEOC Chair Jenny Yang and the staff of the EEOC should be commended for taking these outstanding steps to protect the dignity and human rights of workers in the American workplace.
There are several parts of this enforcement guidance that deserve particular praise. First, it is great to see that the issue of intersectional harassment is being directly addressed. It makes little sense that harassment based on a protected status would be unlawful but harassment that crosses over two or more statuses would not. It is outstanding to see the EEOC address this issue head on and to protect workers from this cross sectional form of harassment. Similarly, the EEOC has taken an extremely positive step towards addressing the growing problem of harassment against members of the LGBTQ community. Harassment based on one’s sexual orientation or sexual identity is clearly gender based harassment as recognized by the EEOC. Because we at the National Workplace Bullying Coalition realize that harassment is not only a form of discrimination, but is also a dignity harm (as is recognized globally). We further support these two elements of the revised enforcement guidance because they put a stop to the judicial narrowing of protected classes and afford more workers protection to their dignity in the workplace.
The EEOC has also done an outstanding job in addressing and defining the unwanted and subjectively objectionable standards. Over the course of the past decade or longer, it has at times been shocking to see judicial interpretations creating an extremely narrow path for plaintiffs to prove a behavior was either unwanted and/or subjectively objectionable. This increasing burden on plaintiffs most likely contributed to the growing hesitance by targets of workplace harassment to bring their complaints forward. The EEOC has made it clear today that the plaintiff’s statement that a behavior is unwanted in itself is enough. This standard is consistent with similar standards for sexual assault that have proven to be critical to addressing such assaults on college campuses and in our communities. Furthermore, the EEOC has recognized that targets of workplace harassment might not share their specific concerns with management but might indeed share such concerns with people whom they trust and with whom they share a level of comfort. The recognition that a target’s sharing such concerns with friends, families or coworkers is evidence that the behavior was unwanted and subjectively objectionable is a critical step to preventing, detecting and eliminating workplace harassment. In our experience, targets do not share their concerns with management because they fear either the unknown (i.e., do not know what will happen if they report) or the perceived or real repercussions (i.e., retaliation). This highlights the importance of management transparency in solving the problem of harassment, discrimination, and equal-opportunity harassment, or workplace bullying – employers must be clear these behaviors will absolutely not be tolerated in order to encourage targets to come forward.
The EEOC has also done an outstanding job of describing the balance in the severe or pervasive standard. As researchers of workplace harassment and bullying, we are aware that acts that may seem minor but over time can indeed inflict great harm on targets of these behaviors. Low grade incivility, micro aggressions, slights and other minor forms of harassing behavior can have a dramatic cumulative effect on workers. Further, it is critical to understand that a single incident can also create a nearly unredeemable hostile working environment. The EEOC has done a great job of explaining the counter balance between pervasive and severe actions. They have also done an outstanding job of identifying some examples of severe incidents that a single occurrence would create a hostile working environment.
We also find the EEOC’s description of the heightened harm to targets of harassing behavior from a supervisor or workplace authority to be an accurate assessment and a much needed piece of guidance to employers. The behaviors coming from a supervisor can be extremely damaging to targets of workplace harassment. Targets are often times hesitant to take any steps to address these behaviors out of a very justified fear of retaliation for even reporting their concerns. In today’s tenuous employment environment, workplace supervisors hold an inordinate amount of power over workers, and it is critical that all pieces of the employment law system recognize this power differential.
Finally, we want to recognize what we believe is extremely important guidance concerning the employer’s liability for supervisory harassment. It was a critically important and positive step to be clear that employers must prove both prongs and that employees can take other measures besides an employer’s policy to mitigate their damages.
However, given the nature of workplace harassment and bullying and our experiences and studies on workplace bullying in the American workplace, there are also some areas for improvement in the enforcement guidance and perhaps at times more appropriately in the judicial interpretation and understanding of harassment in the workplace. The “because of sex (or other protected class)” standard and its interpretation are somewhat troubling. The interpretation of this standard places too great of a burden on the plaintiff to prove a form of specific intent. While they may not need to show there was intent to harm, they must in essence get into the thoughts of the harasser to show they intended objectionable behavior due to the protected status of the target. We believe that the EEOC would be much more effective in expanding this interpretation by applying a McDonnel Douglas standard, recognizing that only the harasser can truly identify their intent. This would provide the harasser the opportunity to make the argument that the bullying was not based on a protected status, but they would have to supply such evidence. Related to this, we believe it is well past time that the US legal system recognizes that the harassing behavior itself, no matter the basis, is a harm that no employee should have to suffer.
The second area of concern deals with the guidance on investigations. The EEOC has taken a good first step in requiring the investigation to be “sufficiently thorough to arrive at a reasonably fair estimate of the truth,” and in suggesting the investigation “should be conducted by an impartial party.” However, we believe the EEOC could provide further guidance here emphasizing that employers should
Avoid treating the investigation as a deposition,
Should be at least hesitant to use counsel that normally serves as defense counsel to the organization,
Should emphasize the fact-finding process and what this entails, and
Should also lay out suggested steps to an investigation to assure confidentiality (for instance interviewing both the target and accused prior to involving witnesses, first moving to witnesses listed by the parties before expanding to witnesses the employer might identify).
The last two areas of concern are a bit more minor in terms of potential improvements to the enforcement guidance itself, but are critical to the prevention, detection, remedying and eliminating of workplace bullying. While it is clearly a step in the right direction to emphasize concerns with retaliation in the harassment enforcement guidance, because retaliation is perhaps the greatest barrier to reporting of incidents of harassment, we believe greater emphasis could be placed on this problem. While there are other guidance available on retaliation, much of that information would seem to be appropriate to cover again in the harassment enforcement guidance, and we would recommend that the EEOC should do so. We are very glad to see no reference to the “reasonably calculated” language adopted by several courts in setting out the employer standard for remedying harassment. This standard places far too low of a burden on employers who at this point in time should be able to do a better job to eliminate harassment and where they do not, the target should not be left bearing the burden of the employer’s failure. However, we are concerned about the adoption that a target must generally follow the employer’s policy. We believe that the language of Faragher and the research around harassment both suggest that targets of workplace harassment should be afforded the option of following any reasonable steps to mitigate their damages. This may entail reporting within the employer’s policy, but reporting to the EEOC, state level human rights commissions, or even to other members of management would also seem to be reasonable steps. If a target of harassment takes any of these steps, the second prong of the Faragher defense should no longer be available to the employer.
The EEOC’s steps to combat harassment are extremely commendable. The work of Chair Yang, Commissioners Lipnic and Feldblum, the Select Task Force for the study of workplace harassment and the staff of the EEOC to combat harassment in the workplace has been perhaps the most positive action taken to protect the dignity of the American worker since the passage of the Lilly Ledbetter Act. Workplace harassment and bullying is a severe and pervasive problem in the American workplace and we all must work together to end this harassment and to assure workers’ human rights. All journeys begin with the first step, and the EEOC today has taken an outstanding first step to confronting this problem.
Jerry A. Carbo II JD/Phd
Member Select Task Force
Board Member National Workplace Bullying Coalition
Professor, Shippensburg University
Catherine Mattice, MA, SPHR, SHRM-SCP
President National Workplace Bullying Coalition
President of Civility Partners, an HR consulting firm focused on creating positive workplaces
Also on Behalf of the National Workplace Bullying Coalition