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EEOC lists 12 harassment risk factors
Thirty years ago, the U.S. Supreme Court ruled that workplace harassment was a form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. In a report released last week by the U.S. Equal Employment Opportunity Commission (EEOC), the agency concluded that it's time for a reboot of workplace harassment prevention and compliance initiatives.
The Washington, D.C.-based agency met June 20 to hear the findings of a 16-member task force made up of management and plaintiffs' attorneys, representatives of advocacy groups for employees and for employers, and academics who have studied harassment. For 18 months, the group held hearings on workplace harassment and examined methods for preventing and addressing it. The task force was charged with providing knowledge and diverse viewpoints for the final report prepared by the co-chairs, who were commissioners Chai R. Feldblum and Victoria Lipnic.
"We want our report to have a game-changing impact on preventing workplace harassment," Feldblum said during testimony.
The comprehensive report includes recommendations for harassment prevention, including a chart of risk factors for harassment and suggestions for policies and procedures to reduce and eliminate harassment. It also offers a toolkit of compliance assistance measures for employers.
Workplace Harassment Charges
Of the 90,000 charges received by the EEOC in fiscal year 2015, about one-third dealt with allegations of workplace harassment. In 2015, the EEOC secured $164.5 million for workers alleging harassment.
The task force found that when employees were asked in surveys using a randomly representative sample, 1 in 4 women in the United States reported experiencing sexual harassment at work.
Feldblum noted that it was "disturbing" that, while some confront their harassers, the more common responses are to avoid the harasser, to downplay the gravity of the situation or to endure the behavior. Only about 30 percent complain about the behavior to a supervisor and most—85 percent—do not file a formal complaint.
In formulating its recommendations, the task force took a broad look at unwelcome conduct in the workplace. "We wanted to find ways to help employers and employees prevent such conduct before it rose to the level of illegal harassment," Lipnic said.
The task force highlighted three ways to help curb workplace harassment:
Harassment prevention must start at the top. Workplace culture—led and modeled by company leaders—either allows harassment to flourish or prevents it.
The commission heard testimony from a man, Contonius Gill, who successfully sued his former employer, a North Carolina-based trucking company, for harassment based on race. Gill said it took a jury less than one hour to find discrimination. When asked about bringing his complaints of discrimination to his supervisors, Gill said the copious use of the "n-word" at the workplace, the use of the word "coon," the various nooses he found in the workplace and reference to President Barack Obama as "Obammy" seemed to be "tradition." When Gill asked the general manager to stop using the "n-word," the man refused.
"Leaders of an organization—private or nonprofit, large or small—must communicate a sense of urgency about preventing workplace harassment. They must communicate this through words, policies and procedures that create a culture in which harassment is not tolerated," Feldblum said. Training must change.While acknowledging the importance of training, the report authors criticized most of the training in use today. Much of the training conducted over the last 30 years has not worked as a prevention tool because it has focused on avoiding legal liability, the report noted. Compliance training is an important component of a holistic harassment prevention effort but on its own is unlikely to stop workplace harassment, Feldblum said.
To change behavior, two additional types of training are needed: workplace civility training and bystander intervention training.
Workplace civility training does not focus on eliminating unwelcome or offensive behavior based on characteristics protected under employment nondiscrimination laws; instead, it focuses on promoting respect and civility in the workplace.
Feldblum said bystander intervention training could be a "game changer" in the workplace if widely used. This type of training, used by educational institutions for years, gives co-workers the tools to intervene when they witness harassing behavior. It teaches bystanders to recognize potentially problematic behaviors, creates a sense of collective responsibility and provides resources that bystanders need to support their intervention.
Also, when trained correctly, middle managers and front-line supervisors can be an employer's most valuable resources in preventing and stopping harassment, the report concluded. EEOC workplace anti-harassment campaign recommended.The task force also recommended the launch of an "It's On Us" campaign aimed at fighting workplace harassment, similar to the campaign to prevent sexual assault launched in educational settings several years ago. The campaign encourages every person to become an engaged bystander in preventing sexual harassment.
Organizational Risk Factors for Harassment
The task force identified 12 workplace conditions that could be risk factors for harassment to help employers root out and prevent problems before they start.The report listed as risk factors:
Workplaces where some workers do not conform to workplace norms. If a minority of workers does not conform to workplace norms based on societal stereotypes, harassment may occur. A worker with a disability may engender harassment or ridicule for being perceived as "different," as might a worker in a "rough and tumble" environment who for any number of reasons chooses not to participate in raunchy banter.
Cultural and language differences in the workplace. Harassment may be likely to occur when there has been a recent influx of individuals with different cultures or nationalities into a workplace or when a workplace contains significant blocks of workers from different cultures.
Coarsened social discourse outside the workplace. Events that happen outside the workplace may make harassment inside a workplace more likely or perceived as more acceptable. For example, after the Sept. 11 terrorist attacks, there was a noted increase in workplace harassment based on religion and national origin, the report noted.
Workforces with many young workers. Teenagers and young adults may be less aware of laws and workplace norms regarding what is and is not appropriate behavior in the workplace. Young workers who engage in harassment may lack the maturity to understand or care about consequences.
Workplaces with high-value employees. Senior management may be reluctant to challenge the behavior of employees perceived to be particularly valuable, and the high-value employees may believe that the general rules of the workplace do not apply to them.
Workplaces with significant power disparities. Low-status workers may be particularly susceptible to harassment as high-status workers may feel emboldened to exploit them.
Workplaces that rely on customer service or client satisfaction. For example, a tipped worker may feel compelled to tolerate inappropriate and harassing behavior rather than suffer the financial loss of a good tip. A commissioned salesperson may stay silent in the face of harassment so as to ensure that he or she makes the sale.
Workplaces where work is monotonous or consists of low-intensity tasks. In jobs where workers are not actively engaged or where they have time on their hands, harassing or bullying behavior may become a way to vent frustration or avoid boredom.
Isolated workspaces. Harassment is also more likely to occur where workers are physically isolated or have few opportunities to work with larger groups. For example, janitors working alone on the night shift, housekeepers working in individual hotel rooms and agricultural workers toiling in the fields are all particularly vulnerable to sexual harassment and assault.
Workplace cultures that tolerate or encourage alcohol consumption. In workplaces where social interaction or client entertainment is a central component of the job, alcohol use may be more ritualized and, as a result, may present a risk factor.
Decentralized workplaces. Decentralized workplaces such as retail stores, chain restaurants or distribution centers may foster a climate in which harassment goes unchecked.
The proliferation of employees' social media use and how it can contribute to workplace harassment has to be taken into account as well, according to the report authors. All too often, social media can be used as a tool to beleaguer a colleague. Employers should be mindful of preventing harassment when drafting both social media and anti-harassment policies.
Lisa Burden, J.D., is a legal reporter in Baltimore.
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