Use Four Harassment Checklists, EEOC Commissioner Says

Allen Smith, J.D. By Allen Smith, J.D. March 15, 2017

​EEO Commissioner Chai Feldblum speaks at the SHRM Employment Law & Legislative Conference. Photo by Vanessa Hill

​When Chai Feldblum started her first term as a commissioner with the Equal Employment Opportunity Commission (EEOC) in 2010, she "personally was shocked about how much harassment was still going on" in the workplace. Feldblum came to the EEOC after working as a professor at the Georgetown University Law Center in Washington, D.C. She said she must have been "a little shielded in my academic bubble."

But a third of the charges with the agency were harassment claims, she noted March 14 at the Society for Human Resource Management Employment Law & Legislative Conference.

In 2012, she said, the EEOC decided it didn't want to deal with harassment just through enforcement. It opted to improve its outreach on the topic and by June 2016 had issued a report on harassment that employer and employee representatives helped assemble. Feldblum urged conference attendees to use the four checklists in the report, which cover:

  • Leadership and accountability.
  • Anti-harassment policies.
  • Harassment reporting systems and investigations.
  • Compliance training.

Leadership and Accountability

A harassment policy should be easy to understand, states the checklist on leadership and accountability. Feldblum noted that the EEOC's own proposed anti-harassment policy was 30 pages long. She said the commission now is working on a five-page policy that satisfies the checklist.

This checklist also calls for, among other things:

  • Accountability for mid-level managers and front-line supervisors to prevent and/or respond to workplace harassment.
  • Regular training for mid-level managers and front-line supervisors.
  • Regular compliance training for all employees so they can recognize prohibited forms of conduct and know how to use the reporting system.

The agency said it recognizes that employers have made an extra effort to prevent harassment if they:

  • Conduct surveys on a regular basis to assess the extent to which harassment is a problem in the workplace.
  • Conduct workplace civility training.

Anti-Harassment Policies

The checklist for anti-harassment policies encourages employers to create:

  • An unequivocal statement that harassment based on any protected characteristic—such as sex, race, national origin, age or disability—will not be tolerated.
  • An easy-to-understand description of prohibited conduct, including examples.
  • An assurance that the person reporting harassment will not be subject to retaliation.
  • A statement that the identity of an individual who submits a report, a witness who provides information regarding a report and the target of the complaint will be kept confidential.
  • A statement that any information gathered as part of an investigation will be kept confidential to the extent possible consistent with a thorough and impartial investigation.

A member of the audience asked Feldblum if the EEOC and the National Labor Relations Board (NLRB) would resolve their differing stances on the confidentiality of information. When policies restricting what employees say to colleagues are overly broad, according to the NLRB, they violate employees' right to protected concerted activity. While the EEOC indicated in its report that there might be a dialogue between the agencies on resolving the tension between their stances, Feldblum indicated that she thought the NLRB might adjust its position even without that conversation.

Harassment Reporting

Harassment reporting should, according to the EEOC, include:

  • A supportive environment where individuals feel safe to report harassing behavior to management.
  • An investigation that protects the privacy of individuals who file complaints or information during the investigation and the person(s) alleged to have engaged in harassment to the greatest extent possible.
  • Systems to ensure that those alleged to have engaged in harassment are not presumed guilty.

Compliance Training

Compliance training should, the fourth checklist states:

  • Be supported at the highest levels.
  • Be conducted by qualified, live and interactive trainers. If live training is not feasible, training should be designed to include active engagement by participants.

[SHRM members-only HR Q&A: Are sexual harassment training providers required to possess certain qualifications to conduct a training program?]

  • Include examples that are tailored to the specific workplace and the specific workforce.
  • Describe the process for reporting harassment.

Top Priority

Ending harassment is a top priority for the EEOC, Feldblum observed, noting that combatting systemic harassment is one of the agency's main priorities in its current Strategic Enforcement Plan.

The other goals are:

  • Eliminating barriers in recruitment and hiring.
  • Protecting vulnerable workers, including immigrant and migrant workers.
  • Addressing selected emerging and developing issues, such as the rights of gay, lesbian, bisexual and transgender individuals.
  • Ensuring equal pay protections for all workers.
  • Preserving access to the legal system by focusing on overly broad waivers, releases and mandatory arbitration provisions.

These goals will not change unless the commission votes to change them, Feldblum said, noting that the commission is, by design, a bipartisan agency. It's made up of five commissioners, no more than three of whom are from the same political party.

Even so, she said that when she joined the commission, for a number of years the commission had been "very partisan."

She added, "That's not been my approach." Feldblum, who is a Democrat, said, "I knew there would be better policies if I was listening to everybody.'

Her second term ends July 1, 2018. 

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